If this bill passes, it would become nearly impossible to sue the police in all but the most egregious instances of abuse, and even then, only in cases where the victim is basically beyond reproach. These sorts of lawsuit are incredibly expensive. The relatively rare large award is the incentive for civil rights attorneys to take on these cases in the first place and can often be what funds their ability to take on cases less likely to pay out large damages. Removing the ability to collect compensatory or punitive damages, or even recover attorneys fees, basically means it would become even more difficult for victims of police abuse to find representation. If there’s even the slightest chance that the police could convince a jury that the plaintiff engaged in conduct that was even “related” to a felony or violent crime, there’s no incentive for them to take the case.
I spoke with a couple of attorneys who take such cases to get their take on the bill. “The whole purpose of section 1988 [the federal law that reimburses attorneys who successfully bring civil rights cases] was to encourage lawyers to take the small cases — the illegal pat-down, the false arrest — the ones that don’t promise a big payout,” says Joel Berger, a civil rights attorney in New York who has handled police abuse cases for more than 40 years. “You need people to take those cases to keep the government accountable.”
Robert Phillips, one of just a handful of attorneys who take police abuse cases in South Carolina, agrees. “This bill would effectively end all police liability,” Phillips says. “It would end my practice. It would end the practices of the other attorneys who work in this area. It would severely restrict access to the courts. It would basically make it impossible for victims of police abuse to sue anytime, anywhere.”
Another possible consequence of the bill is that true victims of police abuse could be more likely to face unmerited criminal charges. Police and prosecutors are already accused of bringing unwarranted charges in abuse cases, then leveraging those charges — agreeing to drop them in exchange for a promise from the victim not to sue. Because the police would need to show only some connection to felony or violent acts by a preponderance of the evidence, merely filing a felony charge would likely dissuade most attorneys from taking a victim’s case. “There’s a term in policing called box-carring,” Phillips says. “It means you pile all the charges you can on somebody so you can force them to take a plea. That’s what you’re going to see here. Imagine you’re a protester who gets beaten up the cops. The local police will hit you with all the usual charges of resisting police, rioting and assault. But now you could also be looking at a separate federal trial for assault. That’s thousands of dollars more in legal fees — and a virtual guarantee against you ever filling a lawsuit.”
“It’s an outrageous proposal, says Berger. “You’re going to insulate police officers from any civil liability. You’re turning killing of police officers into a federal crime, regardless of the circumstances. You’re deterring lawyers from taking these cases. It’s just bad news.”
The provision limiting damages could be particularly potent in cases where the victim doesn’t survive. “They only need to show that you ‘more likely than not’ committed a felony,” Phillips says. “If four police officers say you reached for a cop’s gun, that’s a felony. It’s rare that you’re going to win that argument, anyway. But now imagine you can’t even make it, because they shot you dead. Your family will get nothing. Maybe you get them to pay for a funeral. Nothing more.”
Even the general principle behind the bill is misguided. There just isn’t much evidence to support the notion that cops are getting sued left and right over petty infractions. Again, it’s already extremely difficult to sue a police officer.
“We have seen a significant increase in these lawsuits in New York,” says Berger. “But that isn’t because these people are greedy or money-hungry. It’s because they’re unsatisfied with internal discipline and with the civilian review board. They’re not asking for huge sums, they’re just asking for accountability.”
It’s true that some large cities have paid out hefty totals to settle police abuse cases in recent years. But those figures tend to be driven by a few huge awards or settlements in cases that generated a lot of media attention. Outside large urban centers, it’s harder to get that sort of attention, particularly if there’s no viral video. Qualified immunity prevents most such cases from ever getting before a jury. Get over that hurdle, and you’re faced with another challenge — juries tend to be reluctant to rule against police officers. Even in those rare instances that cops are found liable and a jury awards significant damages, the officers themselves are almost always indemnified by the city or state that employs them. There are vanishingly few cases in which a police officer was forced to personally pay a dime as the result of a judgment or settlement in a civil rights cases. The thinking behind these liability laws is that if a city is forced to pay out enough to victims, elected officials will eventually face political pressure to hold police leadership accountable — to change use-of-force policies, improve training or recruit better officers. Or perhaps the pressure could come from municipal insurers. It isn’t the strongest incentive, but it’s just about the only one left. And this bill would go a long way toward removing it.
“With new legislation, we usually pay more attention to the bills that take smaller bites out of something like access to the courts,” Phillips says. “Those are the ones more likely to pass. The crazier bills usually don’t have a chance. Any other time, I’d dismiss a bill this egregious as just too nutty to ever get a vote. But we’re in the Trump era. So there’s a lot more reason to worry.”
