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Civil Remedies for Police Transgressions

Senior Circuit Judge Jon Newman of USCA2 has this op-ed in the WaPo, proposing expanded civil remedies for police misconduct.  It is an important subject and worthy of serious consideration, but I think Judge Newman's article may mislead folks who are not familiar with the law in this area, both nonlawyers and lawyers who specialize in other areas.  Judge Newman writes,

The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.

Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards.

But when an officer uses excessive force or makes an unlawful arrest or search, proving wrongful conduct is not enough. Under Section 1983 of the federal civil rights statute, the officer can escape liability with the special defense of qualified immunity -- showing that he reasonably believed his conduct was lawful, even if it was not. And if the jury finds the officer liable, federal law does not require his employer to pay the award.
There is some truth here, but there is more to it.
First, "inadequacy of the criminal law remedy"?  Did anyone ever claim that criminal prosecutions alone were or should be the only tool in the arsenal?  I haven't heard it.  Criminal prosecutions serve particular purposes, including society's retribution for offenses serious enough to rise to criminal matters and deterrence of those who might be considering committing such offenses.  Criminal law has never been the sole remedy.  Tort law has always been part of the mix.

Second, the examples chosen here are problematic.  The death of Freddie Gray is indeed a case of negligence and not a criminal act.  As Judge Williams found,

Here, the failure to seatbelt may have been a mistake or it may have been bad judgment, but without showing more than has been presented to the Court concerning the failure to seatbelt and the surrounding circumstances, the State has failed to meet its burden to show that the actions of the defendant rose above mere civil negligence.
As Bill notes in the comments, Freddie Gray's family had a cause of action for damages against the City of Baltimore and has already settled it.  Whatever deficiencies exist in civil remedies in other cases, there was none here.

In the Rodney King case, the acquittals were in state court.  The subsequent federal civil rights prosecution produced convictions.

Third, a claim of violation of civil rights should be harder to prove than a claim of mere negligence.  It's a more serious charge.  Even if a police officer does not pay the judgment out of his pocket, it will be a stain on his record and reputation.  Some officers are dirty and deserve to be stained, but many, many others are doing their best at a difficult job and being second-guessed over decisions that must be made on the spot, sometimes in situations where the law is unclear at the time of the act.

These considerations aside, Judge Newman's main thesis is that Congress should abrogate two Supreme Court lines of cases, one that established the qualified immunity rule and one that negated for ยง1983 suits the usual rule of tort law that employers are responsible for the on-the-job torts of their employees.  Both would have to get the heave-ho together to avoid making police officers routinely pay judgments out of pockets, with a resulting mass exodus of police officers.

An important aspect of this matter that Judge Newman does not tell the readers is that the rule against holding the employing agency liable does not apply across the board.  Cities can be held liable for money damages in cases where the acts in question are part of a "pattern or practice" within the city's police department.  That is where a civil remedy is most needed, and it is already there under current law.

How about civil liability of the city for individual instances of unlawful arrest or search that are not part of a pattern or practice?  Chief Justice Burger proposed such a system 46 years ago as a replacement for the exclusionary rule.  I have not seen any eagerness on the part of those complaining about searches to take the Burger proposal up, and Judge Newman does not suggest it.  If expanded municipal liability for searches really is going to be on the table, then by all means let us consider it in the context of the Burger alternative.

Finally, there is the issue of expanded civil liability of the city for individual acts of excessive force.  That can be considered, but the degree of fault of the person arrested must also be considered in the equation, and there must be an offset for his culpability in creating the situation.  Never forget, Rodney King would not have suffered any injury at all if he had merely done what everyone should do.  His injuries were to a very large degree of his own making.

The Newman article is a start, but much more needs to be said in this conversation before we go tinkering with bodies of case law the Supreme Court has developed over many years.


Actually, in at least some jurisdictions, such as Michigan, and I doubt it is alone, the negligence analogy doesn't work, as governmental immunity statutes preclude recovery in cases of ordinary negligence.

Going the other way, isn't it odd that the truth can be suppressed in a criminal case where on the same facts an innocent person can't receive damages under qualified immunity? How about making the qualified immunity standard the exclusionary standard, and maybe loosening a bit on civil liabiliy?

Just as a point of information, the city of Baltimore, last September, reached a $6.4 million settlement with Gray's family.


Although the follow-up post addresses some of this, I feel it necessary to say that the WSJ op-ed proceeds from the position that the police in Baltimore are in fact, wrong and somehow liable, and that the failure of the criminal prosecutions a fault rather than a correct result. It equates the acquittals with "inadequacy" of the criminal law remedy, instead of a decision which defines the factual circumstances.

Then the learned jurist goes on to complain that the burden of proof in a tort which requires intent, or at least, bad faith, is greater than that required to show negligence. You know, like the difference in trying to prove murder versus speeding. We get it. I want to say something like "No sh*t" but the writer is a long-time appellate judge, once at least considered for the USSC, a many time contributor to the NY Times and NPR and PBS, etc. All the right stuff, in other words. So, we should just forget about qualified immunity. Wonderful. Of course, no telling who we would the get to populate our police forces. But I'm guess the quality, such as it is now, would not improve with this splendid idea.

And, certainly the judge also fails to mention that a common tactic in civil 1983 suits (and state civil suits) is for the plaintiff to dismiss the individual cops as defendants, so they can be forced to testify, and then every complaint, every missed court day, every arrest which was dismissed or discharged, can be explored, seeking that "pattern or practice", because really, cops have no assets. Insurance companies for police agencies, on the other hand, have lots of money. And, more than likely, they will settle after discovery.

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