In stark contrast with the usual simplistic activists, UCLA lawprof Joanna Schwartz offers no fantasy panacea that eliminating qualified immunity will somehow end wrongful police violence. But Schwartz has done some of the most important scholarship on QI, including this article in Yale Law Review on how qualified immunity fails, and so what she has to say deserves serious consideration.
In an excerpt from her new book, Shielded, How the Police Became Untouchable, Schwartz offers some interesting measures to hold individual police officers responsible for their actions.
One of the biggest issues is that indemnification laws and policies mean that officers virtually never contribute to settlements and judgments entered against them. If officers aren’t financially responsible for settlements and judgments entered against them, how will they suffer consequences for their misconduct significant enough that they are deterred from doing something similar in the future?
Some might argue that that’s what internal police discipline is for. But police departments rarely discipline their officers—making it clear that we cannot rely on the police to police themselves—even in cases where people win substantial settlements and judgments against them. I’m all in favor of improving police department investigations and discipline and more often firing officers who violate policy and the law. But until we do, we need a plan B.
According to the nature of the wrongdoing, there are two means by which police officers suffer consequences for engaging in wrongful conduct. As noted, internal discipline is rarely imposed. This is a product of internal politics within departments and police unionization, where discipline is subject to arbitration and arbitrators regularly override internal disciplinary decisions, making it difficult if not impossible to fire cops who do wrong.
The other means is criminal prosecution, if the wrongful conduct is in violation of law. While prosecution of cops has increased significantly since the murder of George Floyd and the election of progressive prosecutors who are not disinclined to hold police accountable, it remains an inadequate method of deterring criminal conduct by police as reflected in the murder of Tyre Nichols, for example, even though video has become ubiquitous. Too many cops just don’t seem to care whether their crimes are readily seen on camera. They do what they do regardless.
But that raises the question of whether a § 1983 action is intended to punish cops for their wrongdoing, to hold them accountable and thus deter such conduct, or to compensate the victims of their violation of constitutional rights. If the two means by which consequences are intended to be imposed are not working, is the solution to fix them or use an alternative means, the § 1983 suit, the purpose of which is directed solely at making the victims whole, to fill the gap? Schwartz argues for the need of a Plan B.
One option is to have officers pay a portion of the settlements and judgments entered against them. In June 2020, one month after George Floyd was murdered, the Colorado legislature passed a bill that does just this. Colorado’s bill requires that local governments indemnify their officers—unless they have been convicted of a crime—but also provides that a police officer found by their employer to have acted in bad faith can be obliged to pay 5 percent or $25,000 of the settlement or judgment, whichever is less. And if the officer shows they do not have the money to pay, the city must pay the officer’s share of the obligation.
Whether requiring cops to cover some portion of the judgment, whether found by their employer or a court, and whether or not convicted, presents an interesting penalty, except that it has little to do with the suit or judgment, and more to do with the internal departmental mechanism for paying the judgment. Does the municipality pay the plaintiff, and then decide later whether to collect from the officer?
What does that have to do with the plaintiff, whose interest is to have the judgment paid regardless of what departmental decisions follow? And what does their being convicted have to do with the § 1983 plaintiff? As Schwartz argues, it’s not likely to have any significant practical impact.
Very few people would be denied indemnification because very few officers are actually charged with and convicted of crimes. A bright-line rule requiring indemnification unless the officer has been criminally convicted should prevent government lawyers from strategically using the threat that officers will be denied indemnification. And, except for the rare instances in which an officer is criminally convicted, the statute ensures that people whose rights have been violated will be compensated and that officers can be financially sanctioned when they act in bad faith.
But the cost of § 1983 judgments not only impacts the individual officers involved, but the management of the departments in general. Schwartz argues that departments, too, should feel the pain of judgments against their officers.
A local government can, for example, tie the money to pay settlements and judgments—as well as the defense of these cases—to their law enforcement agency’s budget. During each year’s budgeting process, the department can get an allocation of money that reflects what they expect to pay that year in lawsuits; if they go over budget, they will have to reallocate money from elsewhere, and if they are under budget, they will have a surplus. Some agencies already budget and pay for lawsuits this way; although lawsuits account for only a small portion of these law enforcement agencies’ budgets, it does mean that when these agencies are making hiring, training, and supervision decisions that might lead to lawsuits, and when they are defending against those suits, they aren’t playing with house money.
There is certainly a visceral sense of satisfaction in taking the funds out of the police budget to make the cops feel the pain, but is it really the department, or the public, who pays either way? Presumably, the police budget is based on its needs for serving the citizenry, so if the monies cause a budget shortfall, that means there are less police cars when someone calls 911. Snark and cynicism about cops aside, who suffers?
What is most notable about Schwartz’s options is that she doesn’t push for either of the two most common, and untenable, “fixes” that activists adore, requiring police officers to buy individual insurance to cover their wrongdoing and taking the funds to pay judgments from the police pension fund. Neither is viable and, assuming that deterrence should be part of the § 1983 equation at all, it’s good to see more serious and thoughtful ideas even if they take the pressure off the real mechanisms for punishing cops for criminal and unconstitutional conduct.
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Cops being indemnified by their employer seems fair in the context that pretty much all of us are indemnified by our employers unless the conduct is flagrantly illegal or ethically egregious. Fair is fair.
But what about some type of insurance system? Require cops to carry insurance and have the municipality reimburse the premiums at a level consistent with what the insurance companies charge for well behaved officer. Or an average officer.
The insurance companies will track the data a lot more rigorously than the DOJ does because money is involved, and if you’re a shitty mean cop you pay out of pocket every month even if your behavior isn’t significant enough to get on the daily news. And eventually if enough bad stuff accumulates on your record, you’re uninsurable. That solves the problem of nasty cops getting fired and simply moving to a new agency.
I imagine that someone will find a huge hole in this but seems to me like it’s better than relying on something that reaches the level of a lawsuit and then trying to squeeze blood out of a turnip.
While your comment should get trashed for a variety of reasons, I’ve posted it to avoid anyone else going down that path. The reasons why insurance is a terrible idea that won’t work and carries bad unintended consequences has been discussed here many times already. It’s a bad idea. Move on.
Actually, most agencies already have liability insurance policies. Every agency I’ve worked for has anyway. In Tennessee, most municipal agencies are covered through the Tennessee Municipal League. I think the 4 large cities have different plans though.
The Sheriff’s Office I worked for had liability insurance through the National Sheriff’s Association. The deductibles are high though. last I knew, the Sheriff’s Office deductible was $25k which meant the first 25k came out of the county’s pocket. There could probably be some way to make the officer liable for that deductible in egregious cases.
I’ve been sued several times. All were dismissed or settled for “go away money.” I was sued once for an incident that happened while I was on vacation and out of state. The plaintiff’s attorney had somehow gotten a copy of our schedule and sued everyone on my shift.
He’s talking about cops carrying and paying for their own insurance, not agencies.
It covered us individually as well as the agency. Officers could also pay for coverage and an attorney through the Police Benevolent Association.
You haven’t lived until you’ve been sued for 300 million dollars.
There is a simple way to make officers feel financial pain from lawsuit settlements: garnish their after tax wages for some of the settlement. It can be done either individually or collectively. I’d prefer collectively. For instance, if a plaintiff was awarded $1,000,000, then each member of the police department could have their pay docked $100 per pay period until the award was reimbursed. Seeing a line item each week on the pay voucher marked “Misconduct deduction” would be a reminder that doing wrong can hurt.
I bet that idea would be huge on reddit. HUGE.
Instead of trashing other people’s ideas, come up with a solution on your own and subject it to public criticism.
Oh, sad little butthurt fella. The problem is that there isn’t always a simple solution to complex problems, but there are many bad solutions that come to the minds of simpletons. And sometimes, there’s no solution at all.
I know it hurts, but you’ll get over it.
Maybe there will be some deeper thoughts on this issue today, but thus far, it’s not looking good.
Simple, like justice is simple, right? Right?
Your first comment is like the crayon scratchings of a six year old, flush with pride at their unique contribution to the world, and your second comment shows the childish immaturity of someone who is mad when it doesn’t get a spot on the refrigerator.
If you keep coming here, and saying stupid things, you’ll get smacked down when appropriate. Take the feedback. Learn to read the full article, and be curious about whether you have anything insightful to add. Spoiler alert: You probably don’t.
Sometimes idiots get baited and cement their fool status by doubling down on stupid, as you were. This is why Paleo is ahead of you, thus far. He’s had the sense to keep quiet after saying something dumb.
Also, when Sgt. Schultz comes out, you know you fucked up. Hope this helps.
Shwartz appears to make no effort to differentiate good faith from bad, not acknowledge the gravy train that rolls into town any time a cop squeezes a trigger, no matter the circumstances. (See Ma’Khia Bryant). And no one holds then accountable for lies and agigation and in the end there is usually a pay day, regardless.
The problem in Memphis was bad people who should have never made it through screening. Every law enforcement agency is desperate for people. None of Shwartz’ solutions address that at all.
And then there’s the matter of her own honesty. “Police violence” remains a rare event, sprinkled among millions of non-events. But that doesn’t sell books.
Until those first two problems get solved, and there is a general insistance on honesty, the problem will get worse.
“the gravy train that rolls into town any time a cop squeezes a trigger, no matter the circumstances. (See Ma’Khia Bryant).”
1983 cases are hard, and they typically involve a two step removal and dismissal roulette that defendants love. Most actually fail.
To make an analogy, most personal injury cases don’t get ‘burned by McDonald’s coffee’ money, either.
To RCJP…” The problem in Memphis was bad people who should have never made it through screening. Every law enforcement agency is desperate for people. None of Shwartz’ solutions address that at all…
Is it? Or is it failure to supervise and manage this “ Scorpion unit.
Listened to an ex cop who said this unit will reappear in
Memphis and something like it exists in almost every city because most cops don’t want to deal with bad guys with guns; but units like this exist to do just that.
I am categorically not defending these cops; these units will exist and need to be managed and controlled.
As this may not pertain to the piece by Mr. Greenfield if it is discarded I understand
I’ve been a cop all my adult life. The problem with “special units” is they sometimes begin to think they are “elite,” and the rules don’t apply to them. Contrary to what you might think, they require more, better, and closer supervision that other officers.
I worked for a Sheriff that wouldn’t create special units for just that reason. He told me once if we needed to raid a house, he knew which deputies he’d use but he wasn’t going to give them the idea they were special. In my experience, that is sound thinking. A later Sheriff wanted to create a SWAT team and much effort was put into what to call it. My suggestion was to call it Trouble. When asked why, I said it would either solve trouble or cause trouble.,
I think it may be too early in the video and criminal prosecution era to declare that criminal prosecutions of rogue officers are ineffective. As yet, convictions are still uncommon, and as they become more common, they should be more effective. There is also nothing wrong with requiring payment of a share in judgments, but most officers are not great savers, as they are typically looking to generous pension arrangements for their longterm planning. Threats to police pensions could be an effective deterrent, but they would need to be in the form of individual forfeiture by a rogue officer rather than idiotic steps like taking money from the police pension fund generally. Because police plans are usually set up as defined benefit plans, taking money from the plan would only increase the plan sponsor’s amortized contribution obligations.
Part of the issue with criminal prosecutions are that there appears, to this casual observer, to be a double standard. Ordinary citizens (I find the term “civilians” in this context to be misleading, as cops are also civilians) are subject to an “objective”, reasonable person standard. Cops appear to be subject to a subjective standard – did they believe somebody posed a deadly threat, not would a reasonable person believe somebody posed a deadly threat. Thus, shooting someone who is crawling on the ground trying to follow contradictory commands can be (and has been ruled) a good shoot, if you’re a cop, but certainly not if you are not a cop.
Until that changes, I don’t think criminal prosecutions are going to be a vehicle for widespread change.
As far as financial consequences go, perhaps compensatory v. punitive damages offer a solution. The city indemnifies for compensatory damages, but if the jury imposes punitives, that comes out of the cop’s pocket. If they can’t write a check, well, their wages can be garnished, too.
If a city does not wish to indemnify its police officers in sec. 1983 suits, it does not have to. For the most part, the cities actually volunteer to indemnify. They could stop at any time. However, I suspect police unions would react rather strongly to any move by a city to refuse to indemnify in the future.
The indemnification is usually required by state laws if the officers were acting in the scope of their official duties.
I suspect the LEOs here aren’t going to like this idea much, but get rid of police unions and it’s a very different internal scenario to get rid of bad cops. Or as you like to twit, “public sector unions are a travesty.”
My thought was and is that there ought to be a middle ground between the polar opposites of intractable police unions and police departments made up entirely of the county commission’s children and in-laws. Our department did some short term supervisor exchanges with the Canadian RCMP over several years. I had hoped for some new ideas on this subject from them but no joy. So, by default, I am in the “don’t like that idea much” category but not comfortable there.
I keep hearing that “bad ‘ol union argument.” Here’s the ugly secret no one will say out loud: The city does not have to agree to union demands. The union can say “We want W, X, Y, and Z,” and the city can say you get A and like it.
Our patrol commander at a former agency I worked for was complaining about the union keeping him from firing someone once. I asked If they had all their ducks and paperwork in order first, and he looked at me like a Martian. I told him that the union couldn’t keep him from firing someone as long as they followed the department’s policy to the letter. I also said if it wasn’t important enough to do right, the employee probably shouldn’t be fired. He thought for a minute and finally admitted I was right.
That’s not quite how public sector negotiation works. Because the dynamics are entirely different than private sector, and cops can’t strike and municipalities can’t lock out, have no profit incentive and don’t personally pay the freight, failure to agree results in mandatory arbitration, so the terms and conditions of employment are forced upon municipalities either way, despite the fact that they have little incentive to take a hard line.
You are absolutely correct about firing procedures. I served in a supervisory position in our department and over a period of eleven years terminated five officers. Without going into the gory details in each instance the process took at least two years of concerted effort each, involved four to six inch thick files of backup documentation for every step of coaching/counseling/general ass chewing and could be derailed by anyone up the chain of command at any time. Fortunately I had friends in HR who were gung ho to get rid of dead wood so I didn’t have to fight that battle. The union reps did their job with gusto and in one case with personal attacks on me in the local media.
Of the five one saw the writing on the wall and moved to another department in the state before termination. Three were terminated and, to my knowledge, never worked in law enforcement again. One alleged civil rights violations in federal court which added a little over a year to the process, lost his case and was terminated.
My only reward was being rid of continuing problems as a supervisor and a wide-eyed “You are the guy who actually fired some cops!” at the start of my exit interview with HR prior to retirement.
There has to be a better system.
What municipal leaders can and should be doing is keeping strict track of the settlements paid out over the course of the collective bargaining agreement. These seem to be six year windows–at least in Connecticut–and when it comes time to renegotiating the contract, the 3% increase gets cut down to 1%. When the police union files for mandatory arbitration before the SBMA (the State Board of Mediation and Arbitration) the municiplaity needs to bring forward the settlement figures. The biggest problem with this–at least in Connecticut–is that under MERA (the Municipal Employees Retirement Act), the SBMA typically determines increases in base wages on the ability of the municipality to pay the increase. So wealthier communities may not have any leverage. Larger cities might. I think the answer to your question as to who pays is that its the community–both ways. In Connecticut I think the newly enacted Police Accountability Act missed an opportunity to reform investigation and discipline procedures used by agencies to self-regulate. There should be a regional process with state appointed panels, not local boards or police commissions, and they should be under the ageis of the Department of Public Safety–I think L. Phillips ‘ comments above are right. The Department of Public Safety must keep accurate statistics of use of force incidents for every law enforcement agency and these must be reported annually and available online for the public–why hasn’t that ever been done? Any officer terminated or significantly disciplined can appeal to the Superior Court–but that’s it. No more arbitration under the collective bargaining contract, and getting reinstated by a labor arbitrator or panel, or if you’re not reinstated by the arbitration then an appeal to the Superior Court. I think this kind of practical remedy would help reduce settlements and judgments. If you look at the 2nd Cir. decision in Edwards, 946 F.3d 631, you may see municipalities start to refuse to indemnify when the juries award punitive damages in addition to compensatory damages. Careful how you plead. But every state indemnification statute is different. The whole thing is a big f—— mess.
You might want to consider paragraph breaks in the future.
Having gone down the various paths in this conversation with you over the last decade, I will only say this: When the political will for change on this issue exists, there will be change. Until then, there will be more blood.
Was the window of opportunity open for change over the past couple years, and then squandered on simplistic and untenable radical schemes rather than serious and sustainable reforms? And now, the window is slamming shut.
I’d instead try touching the moon than respond intelligently on how thousands of different agencies and municipalities sought to enact some measure of change and how it’s going since. I hear the same inflammatory rhetoric that the rest of the SJ community hears. I shan’t assume any of it represents serious analysis.
Probably a trash worthy effort on my part, but what the hell. The answers are already in the existing laws. The problem is that police, prosecutors, and judges all play for the same team. Prosecutors only file charges under the most extreme of circumstances. Then judges find creative ways to excuse police actions. We need prosecutors and judges willing to honestly apply existing law to police misconduct.