By Joshua Brownlee (thanks to Dr. John Brownlee for edits)
One of the hardest things about being a lawyer is saying “I can’t help you.” A few days ago, I had a mother come into my office asking for help. In 2003, her son became unstable. He was on drugs and started acting erratically. The mother called 911. When the police arrived they saw her son with a knife and shot him three times. Later investigations conducted by law enforcement stated that he was 30-40 ft. away from the officers when the shots were fired. It was held the officers were too far away to be in danger and deadly force wasn’t justified under the circumstances. The mother hired a lawyer (not me) and brought a civil rights case. In 2007, the individual officer was held liable and DeKalb County was not. The judge awarded 7 million dollars in damages. She won, so why was she in my office?
She was in my office because she couldn’t collect; she had never been paid. The mother had tried to collect two different times, but each time she was told that the former officer didn’t have enough income to garnish wages. The officer had resigned and moved to another state. She had to pay an investigator to track him down. She came to me because her judgment was in default from a lapse of time and she wanted to know how to revive it. She was justifiably upset. Her child was gunned down right in front of her and she had won in a court of law. Now, 13 years after her son’s death and 8 years after her judgment, nothing. Reading this article you may be tempted to cast your own judgment one way or another. Was it okay for her son to be on drugs and have a knife? Was it justified for the officer to act the way he did? 13 years later, all those questions have already been answered. 13 years later all I could do is refer her to another lawyer who specializes in garnishment and compassionately listen to her story as a fellow parent who loves a son.
This story illustrates a large problem with civil rights litigation and the financial liability of police officers and the communities in which they serve. It is very difficult for a political entity to be held financially liable for a civil rights violation, due to existing case law. More commonly an officer’s misbehavior is separated out from the law suit and he or she finds themselves individually liable, often without the kind of malpractice insurance that is regularly required of doctors, therapists, business consultants, and a whole host of other professionals. This is catastrophic for both the officers and victims, but also creates a lack of transparency and accountability at the organizational level. If individual officers were required to purchase or provided with individual “malpractice” insurance, then they would have a safety net, victims would be compensated, and there would be a third party involvement in collecting data, establishing procedures, and identifying risks.
The current landscape protects political entities and places the brunt of litigation on individual officers
Who is liable for damages is an essential part of any civil case. Historically, local governments and government officials have immunity that protects them from being sued by individuals. The anarchy in the Southern States following the American Civil War forced Congress to recognize people needed to have a legal mechanism to bring civil actions against government officials. In 1871, Congress passed the Klu Klux Klan Act to protect people from constitutional violations committed under the color of law. Specifically 42 U.S.C. § 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
(Emphasis added). 42 U.S.C. § 1983. From the first two words an important issue is raised. What does “Every person” mean? Is it only individuals or can municipalities and counties be counted as a person? In 1978, the U.S. Supreme Court held 42 U.S.C. § 1983 could apply to cities and counties if certain criteria were met. Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). While granting plaintiffs the opportunity to sue cities and counties, Monell also put up a very difficult hurdle for plaintiffs. One of the first responses from a city attorney in a civil rights case is something like:
Even if Plaintiff can prove there was a violation, the officer was not acting under the policies, customs, and procedures of the city government, therefore the city is not liable.
The response points out a big difference between civil rights cases and cases brought against a private company. The legal concept of respondeat superior does not apply. You don’t have to speak Latin to understand respondeat superior. It basically means an employer is responsible for the actions of his/her employees. So if a Pepsi truck driver hits your car on his route because he ran a red light, the company Pepsi could be held liable for the damages. This is true even if the company did nothing wrong. Cities and counties don’t have to worry about respondeat superior, even if a police officer intentionally murders your child. The U.S. Supreme Court has held that a government body’s liability under § 1983 occurs when there is “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Department of Social Services of New York, 436 U.S. 658, 690 (1978). In order to get the city or county to pay for damages, the mother must demonstrate that a police officer shot her child because they weren’t trained properly or they were following a particular city/county policy or procedure. There are certainly cases where this can be demonstrated. For example, in the death of Eric Garner, one of the issues in the case was whether New York City was training its officers to use improper choke holds or take down methods. If a plaintiff cannot demonstrate a policy statement, ordinance, regulation, or decision officially adopted; then there is no municipal or county liability.
What does all that mean? It means there are two different situations that need to be covered by insurance policies. The First is if the city or county is found liable because of a custom or practice. This scenario is difficult to prove in court, but is usually covered under existing insurance policies. The Second scenario is when only the officer is found liable. These cases are much easier to prove factually, but many cities and counties don’t carry insurance covering their individual officers. In Georgia, municipal governments are also protected by statute. Municipalities in Georgia don’t have to pay out unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available and then only to the extent of the limits of such policy. O.C.G.A. § 36-33-1. Georgia leaves it to individual municipalities to decide whether they purchase insurance or not. As you can guess, this leaves a hodgepodge of insurance coverage from city to city. Many small towns and cities have insurance coverage for their individual officers, while most counties and larger cities don’t cover officers. Regardless of a local government’s reasons, the choice to not insure individual police officers has very clear consequences:
Officers are left to fend for themselves in court
Municipalities and counties that don’t insure officers as individuals routinely throw the officers under the bus of civil litigation. In larger cities, supplemental insurance is available but left to the individual’s choice and risk. This is extremely troubling. Police officers fresh out of the academy will rarely choose to buy supplemental insurance when their starting salary is around $34,000. These young officers are learning on the job, they are probably going to make a mistake (just like most people who start a new job) and they are essentially working without a net in one of America’s most stressful professions. That being said, when an officer makes a bad call and causes damages by violating a person’s constitutional rights, the innocent person should be compensated. Many violations are caused by a widespread misunderstanding of the law by police officers. For example, police officers in Georgia have struggled with the issue of being recorded while on duty. The 11th Circuit Court of Appeals (Federal Appellate Circuit for Alabama, Florida, and Georgia) has held the “First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). Despite this 16 year old precedent, police officers have struggled with letting people record them with cell phones. I have personally had this come up in two or three cases. Despite the widespread pattern of behavior it can take dozens of individual cases and numerous years to demonstrate that pattern. The reason is simple. Officers have a “watch your back” mentality that encourages them to avoid getting caught as opposed to avoiding civil rights violations. This mentality has even been validated by the judicial system. The 11th Circuit held:
There is no controlling authority clearly establishing that once a police officer knows another officer has fabricated a confession in a police report for a warrantless arrest, that police officer has a constitutional duty to intervene to stop the other officer’s conduct.
Jones v. Cannon, 174 F.3d 1271, 1286 (11th Cir. 1999). Even if individuals are occasionally caught, nothing gets done to fix the institutional sources of the constitutional violations. Depending on the offense, the officer who is held individually liable will often lose his/her job or get demoted. If that happens, how is the victim going to be compensated? How will the officer pay to defend himself in court once the municipality is dismissed as a defendant? Sometimes a police union or nonprofit may help pay legal fees for police, but the help may depend on how the officer was terminated. In the case of the grieving mother in my office, the officer failed to appear in court and moved to another state. Other options for outcast officers is to declare bankruptcy. An individual officer who is insured is much more likely to stick around for the whole process. People don’t have to entrench themselves into pro-police or pro-civil liberties positions with this issue (personally I think you can be both at the same time) because current policies on officer liability create a lot of suffering on both sides.
City or county attorneys place blame on individual officers rather than accept institutional responsibility
In the beginning of many § 1983 cases, individual officers and their corresponding city or county are listed as defendants. At first, a city or county attorney usually represents all defendants. In the beginning the city or county attorney will give some cut and paste denial to the media like “the city has reviewed the complaint and finds the claims baseless and fully intends to be victorious in court”. That is the line until it becomes apparent there is a blatant constitutional violation. Then the city or county attorney will try and have the officer held solely liable (much to the individual officer’s detriment) in order to save the municipality from paying out. It is important to point out, city and county attorneys sit with police officers during the litigation’s investigation, discovery, and depositions. Do police officers know what positions their lawyers are ready to take if the case goes sour? If an officer had their own insurance policy, they would also have their own lawyer to protect their interests.
Innocent people are left without compensation
For plaintiffs like the woman in my office there is no compensation except for a piece of paper in the form of a judge’s final order. An insurance policy may put limits on damages but at least some damages could be paid in compensation. Not being able to collect anything when your child is wrongfully killed by law enforcement is salt to an open wound. It’s no secret that even if officers are found liable in a civil case, the criminal case is usually dead in the water. An empty judgment, no criminal charges, and a lack of government accountability send shock waves of resentment in communities. These after-shocks go far beyond the individuals involved in a particular case. Carrying individual insurance wouldn’t solve every problem, but it would be a major step in acknowledging there is a problem and would bring a third party’s actuarial, risk assessment, and procedural accountability into the process.
Statistics and data to identify trends
Ask State Farm Insurance how many claims were filed by home owners in the City of Atlanta due to a tree falling on a roof which caused more than $1,000.00 in damage within the last 5 years. You will get a fairly accurate number. Ask them follow up questions about how many claims paid out? How many claims were fraudulent? Which neighborhoods in Atlanta are most at risk? Or how do they asses risk for trees falling on houses? You will get specific and surprisingly accurate answers. Ask the City of Atlanta how many officers were accused of excessive force? Wrongful arrest? Wrongful death? Which neighborhoods, age groups, tactics, and race have the highest concentration of specific constitutional complaints? Whatever answer is given (if any) will be viewed as vague, inaccurate, or manipulated. Most communities in conflict with police don’t trust law enforcement to keep reliable data on civil rights violations. Which makes sense when you take into account the before mentioned “watch your back” mentality that exists within police departments across the country. To be fair to law enforcement, their job is to protect and serve, not create spread sheets. That being said, a business professional would tell you that good data is the first step in improving processes, identifying issues, and solving problems. Having mandatory insurance and reporting for individual police officers allows a third party to analyze data to identify what works and what doesn’t. An honest look at the data will let police departments see where problems are coming from and how to improve: training, hiring practices, and standard operating procedures that reduce constitutional violations and litigation.
Monitoring officer behavior
90-95% of criminal cases end in a plea deal. See: Research on Plea Bargaining. Most of those plea deals are likely done before a defense attorney cross examines the arresting officers. This means officer behavior is rarely scrutinized by an outside third party or in open court, leading bad habits to fester. For a deeper analysis on this issue read Funding Public Defenders Isn’t Just A Nice Thing To Do. Unfortunately, municipalities and counties aren’t likely to start over hauling the criminal justice system anytime soon. This means we need to find another solution in the short term to monitor and encourage good police habits. Individual insurance policies give a third party the ability to monitor and analyze an individual officer’s job performance outside of the blue line culture.
How do we pay for it?
Increasing taxes is one option, but creating a special tax or tax increase in any jurisdiction will be filled with pitfalls. Luckily for police and municipalities, there is another option. Just about every police department in the state collects forfeiture money to put in their budgets. When police seize $1,000,000 in drug money that goes to the department budget. Currently police departments spend forfeiture money on tanks, stingray surveillance systems, new weapons systems, and countless other law enforcement wish list “tools”. Instead of gearing up for a terrorist attack that is statistically unlikely, shouldn’t we make a commitment to responsibly cover officers and victims from mistakes that are becoming all too common in every city and county of Georgia?
As a society we should encourage good police habits. Insurance policies can help discover and monitor law enforcement habits both good and bad. An insurance company can probably do the job much better than a single internal affairs officer or even an entire police department. Insurance policies for individual officers have the potential to cover victims, defend officers, track habits, and encourage better police behavior before litigation starts. Insurance policies for individual officers can have a real impact on actual people. It means officers don’t have to disappear or face bankruptcy if they get caught making a mistake, it means I won’t have to look for a garnishment attorney for a grieving mother who was denied justice.