Here’s a better way to punish the police: Sue them for money
By Jon O. Newman June 23
Jon O. Newman is a senior judge
on the U.S. Court of Appeals for the Second Circuit.
The acquittal Thursday of another
Baltimore police officer charged in the death of Freddie Gray, like the
acquittal 25 years ago of the Los Angeles officers who beat Rodney King,
reveals the inadequacy of the criminal-law remedy. Suing the police for money
under a strengthened federal civil rights law would be a better response to
police misconduct.
Right now, however, federal law
makes it more difficult to sue a police officer for denying a citizen his
constitutional rights than for injuring him by ordinary negligence. If an
officer negligently drives his car and injures a citizen, the victim can win
money just by proving negligence, and the city that employs the officer pays
whatever the jury awards.
But when an officer uses
excessive force or makes an unlawful arrest or search, proving wrongful conduct
is not enough. Under Section 1983 of the federal civil rights statute, the
officer can escape liability with the special defense of qualified immunity —
showing that he reasonably believed his conduct was lawful, even if it was not.
And if the jury finds the officer liable, federal law does not require his
employer to pay the award.
Juries, and even judges in
non-jury trials, are reluctant to convict police officers of a crime, even in
the face of ample evidence. With rare exceptions, they simply will not say
“guilty” and risk sending an officer to prison. Suing the officer for money
damages in a federal civil rights suit is the only realistic way to establish
police misconduct and secure at least some vindication for victims and their
families.
But Congress needs to strengthen
Section 1983 in three ways. First, the defense of qualified immunity should be
abolished. If an officer violates the Constitution, the victim should win the
lawsuit, just as he or she wins when hit by an officer negligently driving his
vehicle.
Second, the city (or county or
state) that employs the officer should pay a damage award, just as a governmental
employer pays for injury caused by an officer’s negligent driving. A jury would
be more willing to rule against a city than to make a police officer pay out of
his own pocket.
Third, the local U.S. attorney,
not just the victim of the unconstitutional conduct, should be authorized to
bring the suit. When federal law has been violated, a federal lawyer should act
on behalf of the victim. A jury is more likely to take the matter seriously if
a U.S. attorney sues than when the victim is the plaintiff, who can sometimes
be perceived as a not very respectable member of the community.
There is no reason for federal
law to make it more difficult to hold a police officer accountable for denying
constitutional rights than for injuring by negligent conduct. Congress should
act to make a strengthened Section 1983 remedy available for the next episode
of police misconduct.
