Supreme Court To Consider Limits of Doctrine of Indemnification For Police Misconduct

This Term the Supreme Court is once again faced with the question of whether to permit plaintiffs in civil rights tort cases to recover for police misconduct. In Wood v. Moss, Plumhoff v. Rickard, and Lane v. Franks the Court will decide whether law enforcement officers were wrongfully denied immunity from liability for misconduct or whether qualified immunity precludes a claim for damages in such actions. The purpose of denying immunity for police misconduct and allowing juries to compensate plaintiffs for injuries resulting from police misconduct has been to deter such conduct by those charged with enforcing the law. But, traditionally, the doctrine of qualified immunity bars police officers from being held liable unless the constitutional right was clearly established at the time of the violation to “ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.”
Two commentators have recently examined the issue of whether the indemnification of police officers found liable in civil suits works against deterring law enforcement officers from future misconduct and have raised serious questions about whether these lawsuits actually do serve a deterrent function and cast serious doubt on the purpose of the doctrine of qualified immunity. Professor Joanna C. Schwartz of the University of California Law School in Police Indemnification (January 17, 2014), New York University Law Review, Forthcoming; UCLA School of Law Research Paper No. 13-27, questioned the “counterfactual assumption” that many courts make that the officers themselves will pay money judgments out of their own pockets. Professor 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. But Schwartz’s national study of police indemnification practices and found that police officers are “virtually always indemnified” by their employers and even when indemnification was prohibited by law or policy, law enforcement officers did not contribute to settlements or judgments. Professor Schwartz argues because indemnification practices “achieve the stated goal of qualified immunity doctrine,” providing officers with qualified immunity, “reduces the deterrent effect of lawsuits nearly to zero.”
In a separate article titled ‘Why Civil Rights Lawsuits Do Not Deter Police Misconduct’ published in the Fordham Urban Law Journal, Professors Richard Emery and Ilann Margalit Maazel explain how the existing indemnification scheme results in tax payers funding these judgments and how political pressure by powerful police unions and plaintiffs’ desire for the municipal deep pocket, conspire to strip the civil rights laws of any meaningful deterrent effect. They propose a solution whereby judges would always allow compensation for plaintiffs but consider the officer’s prior history of misconduct, the disciplinary measures taken against such misconduct, and the defendant’s ability to pay in determining the portion the city should indemnify. The author also proposes that the indemnification scheme should apply regardless of whether the officer acted within his scope of employment.
Whatever the solution, it would appear that the Supreme Court’s current rationale for qualified immunity is not supportable in light of the evidence of nearly-universal officer indemnification and the absence of any deterrent effect.