The Supreme Court has a steady diet of constitutional tort cases, in which plaintiffs seek money damages for public officials’ claimed violations of their constitutional rights. This Term is no exception – Wood v. Moss, Plumhoff v. Rickard, and Lane v. Franks are all constitutional tort cases. Like all tort cases, the purpose of allowing such litigation is both to compensate plaintiffs for their injuries and to deter behavior in the future — the latter being particularly important when it comes to protecting constitutional rights. But a new article by Professor Joanna Schwartz on the widespread indemnification of police officers raises questions about whether these lawsuits actually do serve a deterrent function, and also casts some doubts on the purpose of the qualified immunity doctrine that courts employ to protect public employees.

As Schwartz notes, courts approach constitutional tort cases as if the officers themselves will pay money judgments out of their own pockets.  For that reasons, the doctrine of qualified immunity bars officers from being held liable unless the constitutional right was clearly established at the time of the violation to “ensure that that talented candidates [are] not deterred by the threat of damages suits from entering public service.”  (Steve Wermiel recently posted an excellent overview of qualified immunity on this blog.)  But Schwartz’s national study of police indemnification practices found that officers are “virtually always indemnified” by their employers.  Schwartz examined the indemnification practices of forty-four of the largest law enforcement agencies across the country, and thirty-seven mid-sized and small agencies. During the study period, she found that governments paid 99.98% of the monetary awards to plaintiffs in such lawsuits. Even when indemnification was prohibited by law or policy, law enforcement officers did not contribute to settlements or judgments. Nor did the officers pay punitive damages awards — even though the primary purpose of these awards is to deter future misconduct rather than to compensate the plaintiff.

Professor Schwartz concludes that judicial doctrines too often rely on the “counterfactual assumption” that individual officers must pay awards against them from their own pockets. In particular, she takes aim at the Supreme Court’s current rationales for qualified immunity, which she thinks are not supportable in light of the evidence of nearly-universal officer indemnification. Because she concludes that indemnification practices “achieve the stated goal of qualified immunity doctrine,” she worries adding the buffer of qualified immunity, “reduces the deterrent effect of lawsuits nearly to zero.”

[Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Lane v. Franks.  However, the author of this post is not affiliated with the firm.]

Posted in Academic Round-up

Recommended Citation: Amanda Frost, Academic highlight: Schwartz on indemnification in constitutional tort cases, SCOTUSblog (May. 2, 2014, 4:02 PM), http://www.scotusblog.com/2014/05/academic-highlight-schwartz-on-indemnification-in-constitutional-tort-cases/