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 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.
No comments:
Post a Comment