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Opinion

Taxpayers Paying for Police Misconduct

August 10, 2015
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5min read

When victims of police misconduct win civil cases against the offending officers, who pays? The answer, according to the overwhelming body of civil doctrine, should be the cops in question. But in reality it’s almost always the taxpayer.

In her 2014 NYU Law Review article “Police Indemnification,” UCLA law professor Joanna Schwartz assembles data from 44 of the 70 largest police departments across the US, as well as 37 smaller agencies, into a startling indictment of law enforcement culture. Although the Supreme Court “has long assumed that law enforcement officers must personally satisfy settlements and judgments,” she finds that “officers are virtually always indemnified.”

During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments— even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct

It’s hard to prosecute police. Civil doctrine holds that police officers have “qualified immunity” from civil liability. This means they cannot be required to pay settlements out of pocket, even if they violated a plaintiff’s constitutional rights, unless they violated “clearly established law.”

The qualified immunity doctrine rests on the same logic as malpractice liability caps: if officers are afraid of being sued, they will not protect the public to the fullest of their abilities. It is not designed to protect officers who break the law, and it is definitely not designed to let plaintiffs recover punitive damages from governments. “Neither reason nor justice,” the Court has written, “suggests that such retribution should be visited upon the shoulders of blameless or unknowing taxpayers.”

And yet in the 44 larger jurisdictions Schwartz surveyed, officers contributed to .42% of 9,225 civil cases. In financial terms, this totaled .02% of the $730 million in settlements doled out by cities, counties, and state governments. Of the $3.9 million in punitive damages awarded to plaintiffs, officers did not contribute a dollar. And in the 37 smaller jurisdictions, they contributed 0% of the total settlements.

In other words: almost every time a police officer violated someone’s civil rights, the taxpayers paid for it. Even when officers were criminally prosecuted – even when they were incarcerated – settlements and damages were overwhelmingly borne by the governments behind them.

Schwartz questions whether this is, well, legal:

Some jurisdictions appear to have indemnified officers in violation of governing law. Although Prince George’s County prohibits the indemnification of punitive damages awards, the county indemnified a $50,000 punitive damages judgment entered against one of its officers.158 Juries have awarded punitive damages against New York City Police Department officers six times between 2006 and 2011, with punitive damages awards totaling over $2.8 million.159 Although New York City cannot legally indemnify employees for damages arising from intentional or reckless conduct, it did not require its officers to satisfy the punitive damages awarded in these six cases.

How did these governments circumvent laws that prevent them from indemnifying officers? Tenuously at best. Schwartz found at least one case in which the parties vacated punitive damages in a post-trial settlement:

A plaintiff, alleging excessive force by Las Vegas police officers, won a jury verdict of $175,000 in compensatory damages and $5000 in punitive damages against one officer. After the compensatory and punitive damages verdicts were affirmed on appeal, the case was remanded to the district court to enter judgment.162 Two months later, the parties settled the case for $400,000.163 The entirety of the settlement was paid by Las Vegas.

And in the single case she found where an officer was held liable for punitive damages, this was not so much a matter of law as it was a matter of “administrative convenience”:

In the case, the plaintiff alleged that a Los Angeles police officer handcuffed her too tightly and refused to loosen the cuffs, causing nerve damage. The jury returned a verdict of $160,000 in compensatory damages and $300 in punitive damages. The city paid the $160,000 award, and attorneys’ fees, but did not indemnify the officer for the $300 in punitive damages. The defense attorney in the case reportedly asked plaintiff’s counsel to agree to dismiss the punitive damages judgment, stating that he did not want to have to petition city council to have punitive damages paid by the city. Plaintiff’s counsel replied that he would agree to dismiss the punitive damages judgment if the Los Angeles Police Department agreed to implement better training regarding handcuffing arrestees. Defense counsel would not agree to this condition, but never petitioned the city council to indemnify the officer for the punitive damages judgment. Plaintiff’s counsel reported that he never sought to collect the $300.

This bears repeating: the sole officer held liable for punitive damages never paid those damages. But the story only gets more disturbing. Schartz found evidence – anecdotal but nonetheless compelling – that city, district, and state attorneys exploit the possibility that they might deny indemnification as a tactic to reduce verdicts. When the cases resolve, they indemnify the defendants anyway.

Consider this practice in New York:

The City of New York has indemnified every punitive damages judgment entered against officers represented by the city from 1996 until at least 2011.Yet the city maintains that indemnification decisions are not made until after trial. During trial, government attorneys use the possibility that they will refuse to indemnify their officers as reason to “ask[ ] courts to give jury instructions implying that officers will have to pay,” “ask courts to hold hearings on officers’ ability to pay,” and “ask[ ] officers on the witness stand about their salaries, numbers of children, and anything else that might convey to the jury the impression that the officers’ personal finances are in play.”

…Or this story from California:

…The California Highway Patrol also appears to have used the possibility that its officers would not be indemnified to its benefit. In Grassilli v. Barr, the plaintiff sued several California Highway Patrol officers for unlawfully arresting him and otherwise retaliating against him after complaining about an officer’s conduct. At trial, the jury awarded $500,000 in compensatory damages. During the punitive damages phase of trial, each defendant testified about his limited financial resources – an indication that the defendants would personally satisfy any punitive damages verdict. Defense counsel even suggested, during closing argument at the punitive damages phase of the trial, that defendants were going to be personally responsible for the $500,000 in compensatory damages that had already been awarded against them. Ultimately, the jury awarded $3 million in punitive damages against one officer and approximately $1 million in punitive damages against a second officer.

Several months after the trial, defense counsel told plaintiff’s counsel that the California Highway Patrol had decided to indemnify the defendants for the punitive damages awards.

That these are anecdotes does not discount them as evidence of systemic injustice: the clear fact of Schwartz’s study is that governments almost always indemnify offending officers. This comes at enormous cost to the taxpayer. Salon noted that in Michael Bloomberg’s three-term tenure as mayor, New York City shelled out more than $1 billion in settlements. In 2013, it paid $138 million; in 2014, $217 million – “just to settle claims from allegations of false arrest, excessive force and civil rights violations.” And that’s just one city.

The problem with officer indemnification extends beyond the taxpayer’s burden. It completely nullifies the deterrent effect of damages. Officers who don’t have to pay for their misconduct are not disincentivized from future misconduct. Salon cites a 2014 New York Daily News story about a Bronx detective who was named in 28 lawsuits going back to 2006 that cost the city $884,000 to settle. The newspaper identified 55 other officers out of the NYPD’s 34,000 who were each sued at least ten times and cost the City $6 million in settlements.

These are officers who remain on the streets, who get promotions, who train the next generation of cops that they can get away with abusing the badge. So long as governments pay for the mistakes of cops, why should we expect them to stop?

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