As Baltimore continues to struggle in the aftermath of Freddie Gray's death at the hands of police negligence, at the very least, new aspects of a broader shadowed reality have been brought to light--new ways in which a black man's death can be “naturalized” no matter how unusual the circumstances, and new ways in which police avoid accountability, seemingly without breaking a sweat. The response to Freddie Gray's death has been remarkable, precisely because the usual course of inaction is not being followed. But what is the usual course?
One key indicator of this is how often officers who hurt or even kill citizens they are supposed to protect are held financially liable for their misconduct. The answer is—quite rarely, according to an extensive research project carried out by UCfLA law professor Joanna Schwartz. In New York City, over a six-year period, the city paid out almost $350,000,000 in more than 6,800 lawsuits, but officers only paid out of their own pockets in 34 of these cases—half a percent of the total—and the total amount they paid, $114,000, was less than half a thousandth of the total judgments paid by the city.
Now here's the shocker: New York City is the rare exception, in which officers aren't automatically protected. It accounted for the vast majority of cases in which police officers paid even one thin dime for their misconduct in civil judgements, even when they went to jail for having criminally violated the rights of citizens. Not only should these findings be shocking to the general pubic, they should be shocking to legal system, which continues to work on the false assumption that officers are widely held financially responsible for violating citizens' rights.
To understand how the system of civil liability for police misconduct currently works—or doesn't—and how this fits into the larger framework of dysfunctional police/community relations now being dramatized on a national stage, Salon spoke with Professor Schwartz about her the findings in her NYU Law Review article, “Police Indemnification,” and the broader light they shine on the deeply troubling and poorly understood subject of police misconduct.
As you explain, your article examines an issue central to the scholarly debate about civil rights damage actions, and that's whether law enforcement officers are financially responsible for settlements and judgments in misconduct cases. I'd like to ask first, why is the issue is important? And why is an empirical examination needed?
I think it's important to understand who or what entities are paying the cost of police misconduct suits for at least two reasons. One is because taxpayers, as I've discovered, are assuming the costs of police misconduct suits, and it's important, I think, for the public to understand where the money is going. I also think it's important to understand who bears the cost of police misconduct because there are a number of different legal doctrines that control whether plaintiffs can recover in police misconduct case suits. There's a number of doctrines that make it difficult for plaintiffs, even when their constitutional rights have been violated, to recover money damages, and those restrictions are based in part on the assumption that police officers are individually personally liable for the cost of police misconduct; and if that is not true, then it undermines, to my view, several of those restrictions.
Could you go into more detail about those doctrines?
I'm happy to. I apologize in advance, for some of these doctrines can make a layperson's head spin—make lawyers' heads spin as well—but there are three doctrines that I focus on in the paper that really play a big role in civil rights litigation, each of which makes it more difficult for plaintiffs prevail.
One is called qualified immunity, and it is a protection for government officials, such that even if they have violated a plaintiff's constitutional rights, they will be immune from liability if that right was not clearly established. The way that the Supreme Court has instructed lower courts to assess that question is to look at other published decisions by the Supreme Court or other courts, and to look to see whether the constitutional violation in question has previously been declared unlawful. And if it hasn't, the officer will be immune from suit. This is a protection that is a very strong one. The Supreme Court has said that the qualified immunity standard protects “all but the plainly incompetent, or those who knowingly violate the law.” It's a very strong protection. It's premised on the notion that if you expose police officers and other government officials to liability, it will over-deter them. People won't apply to become police officers, or when they're on the street they won't vigorously enforce the law. But if officers are not subject to financial liability, or if judgments and settlements against them are indemnified by their employers, then there is not that kind of financial pressure that's assumed by the court in that qualified immunity doctrine. So that's one area of the law.
Another is what's called municipal liability, which concerns the city or the county's liability for the acts of individual officers. So if you or I was assaulted by private security guard at Wal-Mart, we could sue the guard individually, but we could also sue Wal-Mart, and through a notion of what's called vicarious liability, or respondeat superior, Wal-Mart would be held responsible for the acts of its employees. That does not exist in the world of civil rights law violations. In order to hold a city or county liable for the acts of its officers, you have to show a custom, or a policy of unconstitutional practices by the city or county. It's a very burdensome standard, and it's justified in part by this notion that this has always been the case, that there hasn't been this kind of municipal liability. But it doesn't much make sense if officers in practice are being indemnified by their employers. So there is essentially de facto vicarious liability, because the cities and counties are already assuming the financial responsibilities of paying those bills.
The third area I talk about is punitive damages. There's a Supreme Court decision that holds that plaintiffs in civil rights cases cannot recover punitive damages against cities and counties, only against individual officers, because it would be unfair to impose the costs of punitive damages on taxpayers. But what I found in my research was that cities and counties indemnify officers for punitive damages as well. So those blameless and unknowing taxpayers are already paying the liabilities of the officers, the punitive damages liability.
So those are three ways in which the doctrine that governs these cases is inconsistent with evidence of widespread indemnification.
So why was an empirical examination called for?
For decades, scholars and commentators have argued about how frequently officers are indemnified. And there have been assertions, based on anecdotal evidence, that officers are usually indemnified. Other scholars have looked at variations in state laws regarding indemnification; there's lots of variations so it means not all officers are indemnified, so commentators and courts have been relying on very thin and incomplete information to make opposing claims about how frequent indemnification is. So my goal with this piece was to look not just at one or two jurisdictions, but to really look at as many jurisdictions as I could. And to find out what practices were across the country, in a way that credibly painted the picture for practices nationwide.
So, what was the scope of your investigation in terms of timeframe and the jurisdictions you looked at?
I began this project in 2012, and sent out public records requests to the 70 largest law enforcement agencies, including both municipal agencies and county and state agencies. My public records request essentially asked for information about the amounts spent, in civil rights claims, over six years—from 2006 to 2011—and the frequency with which punitive damage judgments were awarded, and any instances in which officers were required to personally pay, in part, any of those awards. There was, as you might imagine, a lot of runaround with a lot of jurisdictions to get the information. I would say 80 percent of jurisdictions to 20 percent of my time, and the final 20 percent of the jurisdictions took 80 percent of my time.
Sometime in about 2013, after about a year and a half, or almost two years, I tracked down information from 44 of those 70 departments, and then I presented the paper at Berkeley, at Boalt Law School, and someone asked a very good question: they said, “These are the 70 largest agencies. How do you know what happens is smaller agencies?” That was a very good question, because there are 18,000 law enforcement agencies across the country, and many of those are very small, so I decided to then submit public records requests to a randomly selected group of 70 smaller law enforcement agencies, and got responses from 37 of those 70. So that is how I got the 81.
The results you found were sort of what I expected, only more so, I would say personally, but I don't know about the general public. And certainly it didn't match the expectations out there in the legal literature. So what did you find?
I found that indemnification of officers is virtually certain and universal. During the six-year period across the 81 jurisdictions, there were over 9,200 civil rights cases in which plaintiffs received payments. The total awarded was over $730 million, but there were just 37 to 39 cases in which officers contributed something. When they contributed, it was a rather small amount. The median payment was just over $2,000 by officers per case. And those could be cases where there were five- or six-figure settlements for the plaintiffs in most cases. So the officers really contributed, when they contributed—which was very infrequent—they contributed a rather small amount. No officer paid more than $25,000 in any case. The next-highest amount was $16,500, and the next amount was $12,000. And most of the amounts in most cases were far smaller. So, as you said, it was sort of what I imagined, but more.
Those findings amazed me, but what I found particularly amazing was jurisdictions indemnified officers for punitive damages. Punitive damages are awarded in cases in which officers are found by a jury to have engaged in reckless conduct, intentional misconduct; and punitive damages are intended not compensate victims, but to punish wrongdoers.
I found 20 cases in that six-year period, in those 81 jurisdictions, in which a jury had awarded punitive damages against one or more defendants, and the jurors awarded over $9.3 million in punitive damages in those 20 cases. In many instances those awards were reduced by the courts, often based on argument by defense counsel that the punitive damages awarded would be a financial hardship for the individual officer--but not one officer paid a nickel toward any of those punitive damages. They were either indemnified, paid by the cities and counties that employed them, or the cities and counties entered into some post-trial settlement that waived the punitive damages judgment, and essentially the city paid the entirety of the settlement—which was a settlement in the shadow of the punitive damages judgment.
The other thing that I suppose really shocked me, there has been an assumption, even with people who believe that officers are usually indemnified, there's usually some sort of caveat, that of course officers wouldn't be indemnified if they were fired, if they were criminally prosecuted, if they were criminally convicted. What I found during my study was that in multiple instances in which officers were terminated, when they were indicted, when they were criminally prosecuted, even when they went to prison, they did not suffer these financial consequences of the suits. They were nonetheless indemnified.
There are cases in which officers planted evidence. There is one case out of Atlanta where officers planted evidence in the home of a 92-year-old woman who was killed by Atlanta police officers. Officers went to prison for between five and 10 years for their conduct, but they were indemnified in the civil case. Another example out of Albuquerque: A police officer raped a woman who had called the department seeking assistance in a domestic dispute, and he was later criminally indicted for assaulting multiple women, and was sentenced to 15 years in prison. When the jury awarded $873,000 in punitive damages against this officer, for the sexual assault, the city of Albuquerque assumed those costs, indemnified the officer for those punitive damages.
Do you have any information about the process involved? You know, if it was just a routine administrative decision or that it went to the city council?
I don't have any information—it's very hard to get the information about how these decisions to indemnify are made. The New Mexico statute says that the city will pay awards of punitive damages if the public employee was acting within the scope of his duties. So presumably they concluded that sexual assault was within the scope of his employment. But I don't know the internal workings of those discussions.
One thing that I'll say is that plaintiffs' attorneys and plaintiffs benefit from indemnification. Because I'm guessing that Albuquerque police officers sentenced to 15 years in prison would not be able to satisfy punitive damages of $873,000. If we got rid of indemnification, there would be many, many instances in which police officers would not be able to personally satisfy the kind settlements and judgments that are rendered against them. So I'm actually not in favor of eliminating indemnification, both because in multiple areas of professional life we have liability insurance available to doctors and lawyers and other types of professionals, and because there's a risk-spreading benefit, and because without indemnification of some sort, plaintiffs who have been wronged by government actors would essentially be without recompense.
You said in your article that you're not endorsing new standards for any of these errors—before that you'd have to resolve normative and empirical questions beyond the scope of your article—but that you take on a more limited task regarding making better alignments with documentary evidence. So I'd like to ask, first off, what these alignments are, then after that, what's beyond the scope, and what preliminary thoughts you have?
Right. I hesitate to announce new standards myself. And part of this process of understanding what the mechanics were of police indemnification made me a bit humble about assuming facts not in evidence, in existence, in other areas as well. But based on this information it seems it very clear that there is not a justification for the kind of sweeping qualified immunity standards that we currently have.
As the research that I've done shows, there's really no financial threat for officers associated with these cases. Although they may say in a survey environment that they're worried about the flood of civil liability, in practice the danger of being sued does not influence their decisions on the street. And I should say, based on other studies I've done, I found that civil liability lawsuits is not information generally collected and analyzed by law enforcement agencies, so there's very unlikely to be employment ramifications of lawsuits. Although there may be replications of the underlying misconduct, the lawsuits themselves are not having an effect on employment. So there's no financial effect, and there's no employment effect, and there's no evidence lawsuits are in fact affecting officers' decisions on the streets. I think the current bases offered for qualified immunity are not convincing to me. So, based on that, it seems reasonable to reduce the qualified immunity.
Whether there should be no qualified immunity at all, or whether there should be some lower standard, is not something that I take a position on. But if there is going to be some kind of qualified immunity, I think it should be based on an alternative justification for the need for that. Other scholars have said perhaps qualified immunity can be justified on limiting payments by governments and taxpayers. I don't necessarily agree with that point of view, but it would be more intellectually honest, given the information that exists about the financial threat for officers.
Regarding municipal liability, again, because plaintiffs are already recovering from the government's pocketbook, and not the officers' pocketbooks, requiring individuals to go through these byzantine standards for the municipal liability seems a waste of time and money for plaintiffs, as well as the fact that it can often prevent plaintiffs from recovering altogether. So, I think, again, that the justifications for having these separate standards don't make much sense at all.
Regarding punitive damages, I think that there are sort of broader policy questions that I don't weigh in on. My ultimate foundational view is that legal doctrine should be consistent with evidence that is available about the functioning of the legal system. The fact that municipalities are consistently indemnifying officers' punitive damages awards could lead you to the conclusion that punitive damages should be awarded against cities, or that individual officers should not be indemnified for punitive damages awards, or that you could prevent punitive damages from ever being awarded against government officials. The third option I don't agree with, because I think that when government actors engage in malicious or intentional misconduct, punitive damages should be available, just as they are in other areas. And I think that it's—given my research—very hard to imagine preventing jurisdictions from indemnifying their officers, because they already do, even when city and state laws, or city and county laws prohibit indemnification of punitive damages, so I don't think prohibition on its own will get the job done. Which leaves the option of allowing punitive damages against cities as perhaps the best available option.
But regardless of what happens regarding punitive damages, the lower piece of hanging fruit is preventing defense attorneys from arguing, as they do during trial and after trial and on appeal, that their clients, the individual officers, will be personally financially responsible for the settlements and judgments. Their arguments are made to prevent punitive damages from being awarded or to reduce the amount of punitive damages that are being awarded, or to reduce the amount awarded after judgment, and these arguments are based on the notion that the individual officers will be personally financially responsible, and I think they shouldn't be allowed to make those arguments when in fact their jurisdictions are indemnifying officers for punitive damages.
So, what lies beyond the scope of what you are able to discover, or argue in this paper? What else do we need to know? And what do we need to do next in order to inform ourselves to begin really straightening things out?
Well, there are a number things that I am exploring next to try to figure out. One concerns which entities are ultimately bearing these costs; if we know it's not individuals, where in government are these costs coming from?—which is a project I'm working on right now. There are other projects that I'm trying to understand regarding regional variations in Section 1983 litigation [the Federal code section concerning civil action for deprivation of rights] that I think are relevant to these questions. I guess another area that I have been interested in exploring is trying to quantify the time spent by officers in these cases, because I do think that one of the arguments related to qualified immunity concerns the time, the burdens that officers must undertake to defend themselves in these cases. So trying to quantify that amount is something I'm interested in doing.
I noticed New York City stood out as a real exception. This was sort of surprising. It was actually one of the places where officers did pay. Could you tell us something about the extent to which that was significant, and what conclusions can be drawn from it, if anything?
It was very interesting to me to find that New York City was really an outlier in my research. There were 34 cases in New York in which an officer had to contribute something to a settlement. Now to be clear, that's 34 cases out of over 6,800, and it's $114,000 that they paid out of almost $350,000,000, so the numbers are still quite small, but there were these 34 cases over the six-year period I studied in which the officer contributed something. The amount they paid was relatively small, the median payment was around $2,000, but I think that New York City may be onto something with this approach. My understanding—and it wasn't through official sources—my understanding from lawyers who have brought some of these cases is that the New York City Comptroller's office presses defendants to contribute something to settlements in cases where they've been found to violate policy. I don't know for certain that that's true, but that's what I've been told; this is an idea that I think makes some sense. If the department finds that its officers violated policy, requiring them to contribute something to a settlement is one additional lever for sanctions, and deterrence.
Requiring them to pay only a few thousand dollars is perhaps not large enough, and were I controlling things I might assess how much officers should contribute based on their misconduct and their personal resources. Imposing some financial sanction like that can be used as an extra punishment for an officer, but it also doesn't prevent the plaintiff from receiving the compensation to which they are entitled for the violation that they've suffered. Instead of requiring the officer to bear the entire burden of a settlement, which would in many instances be far more than the officer could personally pay, which would be a huge sanction for the officer and also mean that the plaintiff wasn't compensated, by requiring the officer to pay a few thousand dollars, then there is a punishment for the officer, and also the ability for the plaintiff to be compensated.
One thing that occurred to me, reading your article, was the idea of insurance. If officers were covered by insurance, the premiums could be based on an assessment of risk, and with the insurer being motivated to accurately assess the risks, this might be a way of handling things, of spreading the risk, but doing it in a way that kept the risk impact closer to home. Do you have any thoughts about that?
There were efforts in the 1980s to think about how to spread the risk for these kinds of claims. And there was, in Virginia for example, a statute on the books that said there should be this kind of insurance, and I think that it eventually sort of fell apart, and the costs were taken in by the government. So I think that insurance and the performance rating does make sense, theoretically. I question though whether there's any political will to do this, and also whether there's an insurance market to do it.
That market could be created by law.
Certainly. That gets to the political will part. And also the availability of private insurance. There are government risk pools that insure smaller jurisdictions, but for the larger jurisdictions, for jurisdictions like New York, they self-insure. It's hard to imagine an outside insurer covering it.
Wouldn't it make sense to have insurance on a per-officer bases in some way that reflect the cost for risky behavior that could have some kind of deterrent effect as well?
You can imagine imposing the insurance cost in a number of ways. You can impose it on the individual officers. You can have sort of a set range for assumed risk, and that if officers go beyond that they would have to pay some premium above that amount. You can imagine collecting the risk by station, or department, so making it somewhat smaller than that, you can imagine having it even larger by the department itself. I think that the question--and I would defer it to people who think about insurance more than I do--about what the right level is, I do think that imposing some sort of premium on officers or stations that seem to provoke more litigation or losses is something that should be considered.
The argument on the other side is that litigation is an imperfect system for getting at the truth, which in some ways is why I like the idea what New York is doing, which is not simply to say when there's a settlement or judgment, an officer pays some portion of that, because if there's a settlement or judgment it must mean the officer did something wrong. Instead, it does look to see what happened in the case, and whether there was a violation of policy. And I may have other problems with, and disagreements with the way that the NYPD runs its internal affairs investigation, and decides when and whether policy is violated, but I do like the idea of not blindly relying on a settlement or judgment as proof of misconduct, but looking at the underlying facts that were revealed during that litigation, and using that information to decide whether financial sanctions are appropriate.
With the lack of information that entities have, they can't really be expected to do anything about it, so the whole idea of lawsuits as a deterrent doesn't make much sense—either at the individual level, as you've established, or at departmental level where they aren't even tracking what they're paying. Could you discuss that a bit more?
In prior research I had learned that a lot of law enforcement agencies do not gather and analyze information from lawsuits brought against them, so they don't have information about how frequently certain officers are named in lawsuits. When I realized that, it seemed to me it would be impossible to make improvements based on lawsuits if you don't have information about what was alleged in those cases. That same insight was consistent with what I found in the indemnification research. Very few of the police departments had ready access to information about how many lawsuits had been brought against their officers, or what the payouts were. And even more surprising to me was that 18 of the 70 largest cities and counties did not have information anywhere, according to their representatives, reflecting how much was spent in lawsuits involving the police in any given year. Those include places like Baltimore County, and Harris County, where Houston is; there were cities like San Diego and New Orleans. If you don't know how much money has been spent in any given year involving police misconduct cases, it's very difficult to make any efforts to reduce those claims.
There's an old management saying that you can't manage what you don't measure, and that certainly applies in the context of these police misconduct suits. There's no one keeping track of how much money is spent, it's hard to imagine there's any ability to make sensible gestures in favor of reducing those costs. And these are in places that could use the extra money, I'm sure; throughout our country are cities and counties are facing fiscal crises, with parks being closed, and libraries being closed, and the idea that the amounts being paid in settlements and judgments is not being considered as one of the costs that is reducible, seems to me a missed opportunity.
It also seems to show a lack of interest and will to fix those kinds of problems, even a lack of willingness to even think of them as problems.
Yes. Or at least to think of them as problems that are solvable. You can draw the conclusion either that the cities and counties view these things not as problems, but the more charitable view is that they may view them as problems, but don't see them as problems that can be solved.
In terms of looking for remedies, what about the Department of Justice? The DOJ provides support, both financial and nonfinancial, for a very large number of law enforcement organizations across the country. Couldn't this be remedied in large part by having it be a DOJ reporting requirement for its assistance? And if departments implemented tracking, this would actually enable them to get a handle on it, and could be beneficial to them as well. If implemented properly, wouldn't it both do the job and actually be welcome, though maybe not initially?
Yes. I think requiring governments to capture, gather and analyze information about losses is certainly something that the federal government could do. But if I were in charge of things, I wouldn't limit the federal efforts of data collection to lawsuits. I would certainly make it much broader to think about errors and misconduct more generally. As all these events have been happening around the country, it's been noted multiple times that we do not have good information about how often people are killed by law enforcement officers, much less lesser uses of force.
The Department of Justice technically has the power, currently, to collect this information. In 1994, when Congress gave the Department of Justice power to investigate law enforcement agencies—which it's done a tremendous job of in recent years—it gave the attorney general the power to gather data on police use of excessive force, and to publish annual reports based on that data. The police departments have not been mandated to provide the DOJ with this information, so they actually never complied with that requirement, which is to publish an annual survey. So there is technically the power within the federal government to collect and publish this information, but there has not, as of yet, been the political will to make police agencies comply.
Going a little bit farther with idea of pushing for broader framework, one thing that stands out in Baltimore is this Law Enforcement Officers' Bill of Rights, which seems to be a way of shielding individual officers from accountability and making it more difficult to find out what happened, ignoring the fact that they can actually do their jobs better when they're not at war with the community. So is there a larger framework that you can see, that your research would take its place within, in terms of not just solving this problem, but the larger problem that involves criminal deterrence of police misconduct and other administrative actions, the whole range of things that can be done to make police more accountable and do a better job of serving the community?
Wow, it's a big question.
That's why I saved it for the end.
I would say, as a preliminary comment, that I think my research is a very, very small piece of a very large puzzle, and I don't think that the recommendations that I am suggesting would in any way solve the larger problems that we are facing right now. I think that my research is pointing out that there's a lack of information and accountability regarding police misconduct, even as it relates to this issue of the financial effects of the suits.
But, regarding police accountability and the breakdown of police accountability, there are many more components. There are inadequate internal affairs investigations, and insufficient discipline of officers who have engaged in misconduct, and inadequate use of criminal sanctions as ways of punishing officers who have engaged in misconduct, and you have to think about when you want to create a stronger accountability system, not only of the financial sanctions of lawsuits, but also the internal investigations that can happen within law enforcement agencies, the criminal investigations that can happen within states, and all of the information that can be learned from lawsuits as ways of improving conduct.
But beyond that issue of strengthening police accountability, there needs to be a much broader shifting of the understanding of law enforcement and their relationship with their communities. In many aspects of current life, there is the expectation that police accountability is somehow in tension with law enforcement activity. That not violating constitutional rights would somehow impair or impede the ability to effectively police. And study after study has found that that is not true, it's not a zero-sum game, and that improving citizen-police relationships will make it easier for law enforcement to do their jobs. And there are so many systemic issues that I think make that both an extremely important thing to work for and a very difficult thing to work for. It ranges from issues like the Law Enforcement Officers' Bill of Rights and other kinds of protections that make for lack of transparency. It has to do with issues that have been raised recently about where officers live, and the extent to which police officers are disconnected from communities that they're policing. It certainly has to do with some of the militarization of law enforcement, and the roles law enforcement are playing in society. It has to do with the kinds of strategies that law-enforcement agencies are using when it relates to interacting with people who are mentally ill. There are so many different issues, I think, that are coming into play, with these horrible events that have been in the media over the past year.
For somebody who researches and thinks about these issues, the one silver lining is that I believe there is beginning to be a national conversation about some of these really fundamental issues and I hope that perhaps from these conversations there can be some shift in the way that policing functions in our society, but hopefully not at the expense of many more lives.