"Should Tort Law Care About Police Officers?," by Ellen Bublick (ASU) & Jane Bambauer (Florida)

An interesting response to The Plaintiff Police by Sarah L. Swan, Rutgers (Newark); here's the Introduction:

If a person purposely shoots at and injures another, should the shooter be accountable to pay damages to the person harmed? Absent significant justification, in almost every circumstance in every state, the answer is yes. But in The Plaintiff Police, Professor Sarah L. Swan argues that if the injured person is a police officer, the answer should be no. If the officer is hit by a negligent driver's car, she argues for the same result: no tort claim. Professor Swan would dramatically limit police claims to exclude intentional, reckless, and negligent torts, with only narrow exceptions.

As support for this extreme measure, The Plaintiff Police draws on the backdrop of historical racism, significant abuses of police power, and a set of cases that push the limits of tort liability no matter who brings the claim. That set includes Doe v. Mckesson, in which a police officer who was severely injured by a rock-throwing protestor filed suit against Black Lives Matter (BLM) protest organizers (a case that we have previously criticized as insufficiently protective of First Amendment rights). Alongside concerns about racism in policing, The Plaintiff Police draws on the widespread perception that injured civilians can rarely obtain civil remedies for police abuses.

Together, these impressions of vindictive police plaintiffs, and immunity from tort liability, foster a reflexive hostility to the police. In light of these impressions, Professor Swan argues that any possibility of civil action or recovery by police officers will be disproportionate to civilian legal actions, worsen power differentials, dampen political participation, and harm local citizen-community participation. On that basis, The Plaintiff Police argues for a draconian, if easy to administer, rule: if the plaintiff is a police officer, the court should toss out the plaintiff's claims at the start of the case.

We are aware of no state or country that has granted its entire population absolute immunity from civil liability for the tortious, even criminal, harms that its civilians inflict on police. And we think there are good reasons they haven't. In this Response, we argue that the arc of U.S. common law runs in the exact opposite direction: the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including civilians wrongfully injured by police and police wrongfully injured by civilians.

The Plaintiff Police uses officer suits from injuries suffered during BLM protests to argue that tort claims filed by police officers are necessarily "a familiar backlash to African Americans who dare seek equal justice under the law." However, the tort claims filed by Capitol police officers injured on January 6th serve as important counterpoints—reminders that officers' personal rights of redress are an important feature of equal justice under the law. Racial equality is not served by complete immunities for civilian misconduct any more than "law and order" is served by complete immunities for police officers who abuse their power.

In Part I, we lay out our understanding of the current state of affairs for civil claims pursued by police and contrast it with the picture of current suits painted by The Plaintiff Police. In Part II, we correct the record about police defendants, showing that the civil-justice system should, and does, allow for a range of claims against individual police officers, their departments, and federal, state and local entities. In Part III, we challenge Professor Swan's normative claim that officers' pursuit of individual tort claims for injuries suffered is inherently bad for society. To the contrary, we see much value in deterring tortious or otherwise unlawful conduct through civil, rather than criminal, enforcement, both for police and for civilians.

Comments

[Thought about __ all my life]

You remind me of Newsom pullling his shirt out at the LA fires so he looks rushed and on the job. Where does police abuse originate, much of it. in having their hands tied !!! The opposite of what you imply. My child had an arm broken for resisting police. That was probably too much. But I know the guy she was with and he was a childish loudmouth my way immature brat. I am sure he should have been dealt with stronly many times before this. But the law won't and can't do that. First step is to treat the FIRST and EARLIEST infractions of the law the swiftest and hardest. Don't wait for the drugs to be so bad you have an addicted violent out of control man who will do anything for his next fix.

[ReaderY]

I hate to say it, but these authors don’t seem to understand our society. In our society, anti-police arguments as extreme as these authors’ tend to have the unintended consequence of bringing about greater protection and immunity to police vis-a-vis civilians.

In fact, if I were a Trump speechwriter, I would consider putting these authors on my payroll and getting them to write more stuff on these lines for me, perhaps serruptitiously to help me come with more material on the terrible things the extremist anti-police Democrats plan to do to police if they are allowed to have power, and how dangerous they are to the ability of the police to maintain law and order.

[Eugene Volokh]

Just to be clear, the argument that police shouldn't be able to sue was Prof. Swan's; Profs. Bublick & Bambauer criticize that argument.

[John F. Carr]

In my opinion, on the job injuries in police and fire departments should be handled like worker's compensation claims. The employer is responsible. In my state it is sometimes possible for police officers to sue directly. Most of the people hurting police officers aren't rich enough to sue. One guy who was wealthy had to pay $1.2 million. Police and homeowner were in the same house and each thought the other was a burglar. Homeowner shot police officer. Not a crime – self-defense in the home. Not a Fourth Amendment violation – the alarm company called police and said the homeowner was out of town. Just a tort.

[fatnastyretiredguy]

Ignoring any and all legal arguments raised, The Plaintiff Police, appears to have the better argument. Law enforcement and other government agents are continuously protected from tort claims by the court construct called qualified immunity. The case law supporting that defense is absurd. We profess faith in a jury’s ability to find the relevant facts and apply the relevant law. Yet when the defendant is a government agent we add a layer of absolute defense and give it the name qualified immunity. Total balderdash. It is quite easy to fashion an adequate instruction describing the concept of good faith, which is the basis of the qualified immunity argument. I haven’t read this book, but it seems to me a rather rational argument that if an absurd imaginary construct is a good defense for the goose, then a similar absurd construct ought be a good defense for the gander.

[Rossami]

The better solution, however, is to remove the absurd imaginary constructs entirely.

[Stupid Government Tricks]

Nonsense. The accountability should be balanced, sure, but this idea restores balance by removing accountability from the civilian side to match the QI and other lack of accountability on the police side. That's exactly the wrong way to do anything.

[Satchmo_Lives]

You do know qualified immunity is for the person, right? If an officer commits a tortious act in good faith, he will be immune from personal responsibility (such doesn't include bad faith acts as constitutional violations). The victim is still able to sue the government agency that employed him. It literally happens all the time. Protecting officers from being personally responsible for split-second decisions, but being able able to hold the government responsible seems like a good trade off.

I have no idea of the kind of +/- involved regarding the overall affect of holding governmental persons responsible for actions regarding plaintiffs. I do know two things. One, if a police officer can lose his life savings, home, and wages because he made a snap decision that turned out to be wrong, he will no longer be a police officer. Maybe you think that is great. Let's take Breonna Taylor. An arrest warrant was issued Breonna's ex thinking he lived at the location (he owned the property). The police executed a perfectly legal raid based on a warrant. Her new boyfriend started firing at police. She was killed in the crossfire. Who is responsible? The officer whose bullet killed her, or the chain of command for devising a plan that killed an innocent woman? Who will have the greater capacity to make the victim whole?

Two, the community will be worse off because officers will most certainly be extremely cautious and reactive. Who would want to enforce laws in good faith when the officer can lose everything in the process?

[SRG2]

The police should be able to sue, under equal protection arguments, but QI is evidently a judicially-sanctioned violation of equal protection, so there is embedded hypocrisy.

I do think that the police should not readily be able to sue for emotional distress or related "injuries", because there should be the presumption that if you're a cop, you can take it.

[ReaderY]

I think qualified immunity shoild be more narrowly construed, but it does have a proper police.

Without it, if a future Democratic President were the appoint enough justices to overturn Dobbs, then every police officer who ever arrested anyone for an abortion-related offense would immediately become liable.

Because divided courts in our divided society keep changing the law back and forth and the final outcome is often hard to predict, police officers deserve some measure of protection if courts turn out to disagree with their calls on the law or if they complied with existing law that a court later overturned. The idea that police conduct has to be judged by the law in effect at the time, and that genuine doubts should be resolved in their favor, therefore makes sense and is a very reasonable principle.

What doesn’t make sense is the courts’ completely unjustified habit of turning this reasonable and sound underlying principle into something I don’t think it was ever intended to be, a veritable free zero-day exploit card, permitting police to do everything and anything, no matter how obviously unconstitutional or absurd or cruel or defiant of basic humanity or common sense, as long as they can show that a court didn’t find that specific thing unconstitutional previously.

[Rossami]

"police conduct has to be judged by the law in effect at the time" - already the law and always was the law long before the invention of qualified immunity.

"genuine doubts should be resolved in their favor" - already the practices as evidenced by jury findings both before and since the invention of qualified immunity. The statistics are very clear that police are given the benefit of doubt.

And, yes, it's been expanded from there. The expansion was inevitable because once you've got something called qualified immunity, "it must mean something more than what we already had, right?" It was unnecessary when it was invented and has only gotten worse from there.

[ReaderY]

No, there is a real difference. The Supreme Court exempted court decisions from the application of ex post facto laws. Under general common law, if a court announces the existence of a new tort for the first time in a case, the defendant in that case is liable to the plaintiff for that tort. Same with constitutional rulings, which similarly operate under a fiction where the constitution was always so. When Lawrence v. Texas was decided, without qualified immunity every police officer who ever enforced a sodomy law relying on Bowers v.Hardwick would be liable. If Dobbs is reversed, the same would be true with police officers who enforce abortion laws relying on Dobbs.

[Rossami]

So 'courts invented an unjust legal fiction that they inflict on us peons' and your response is 'we have to exempt cops from that injustice' and not 'we have to fix that injustice for everyone'?

Do you see where you're going wrong yet?

[Bored Lawyer]

You are missing his point completely. Sometimes SCOTUS changes the law. Meaning that the prevailing ruling, sometimes prevailing for decades, is overturned. The legal fiction is that the law was always thus, but we all know that's not true.
Example. Katz v. United States (1967) effectively overturned the earlier rulings in Olmstead v. United States (1928) and Goldman v. United States (1942) and expanding Fourth Amendment rights. Olmstead ruled that wiretapping a private phone was not a Fourth Amendment violation. Katz overruled that.
Now let's say law enforcement tapped someone's phone in 1966. Under Olmstead, that was not a violation of his rights. Then Katz decision comes along. Should every law enforcement now be liable in tort to anyone who was wiretapped prior to the decision?
QI would say no. And that is a reasonable application of QI, IMO.

[Rossami]

No, you're missing my point. The 'ex post facto' clause says no - and should say no for all of us, not merely cops and prosecutors who can claim QI.

It's the legal fiction that "the law was always thus" that we should be fixing.

[ReaderY]

Qualified immunity as it currently stands basically encourages creative and legally-informed sadists to join police forces so they can scour the law to identify zero-day exploits which they then get to use once with complete impunity. A creative sadist’s paradise!

[MatthewSlyfield]

"I think qualified immunity shoild be more narrowly construed,"
I think it should be eliminated entirely.

[SRG2]

I think it has a role - in a genuine heat-of-the-moment decision. But in so man instances - in fact, almost all that seem to come up - the decisions were not heat of the moment.

[Satchmo_Lives]

"almost all that seem to come up - the decisions were not heat of the moment."

You mean the ones the media choose to focus on, right?

[questioner7]

"What doesn’t make sense" -- and, separately, the lack of distinction between split-second decisions of police in volatile situations, and considered decisions of bureaucrats who had ample time to decide and to consult lawyers.