Civil Remedies for Rights Violations

Senator Tim Scott is talking with Democrats about ways to revive his police reform bill, Justine Coleman reports for The Hill. One point where Sen. Scott might work out a compromise is on civil remedies for violations of federal rights.

CJLF has been involved in civil suits against peace officers for many years now. Two problems are apparent. First, most such claims are meritless. Second, the barriers are very high, and often insurmountable, for the few claims that do have merit.

Two doctrines created in the Warren Court era, in combination, create the high barrier. Police officers, and other executive branch officials, have “qualified immunity” that protects them from suit if they reasonably believe that they are doing their duty under the law based on the law as it exists at the time they act. That would not be much of a problem for plaintiffs if they could sue the government employer, but there is the catch.

In civil cases generally, employers are liable for torts committed by their employees in the course of their employment. The employer is the real target in most civil suits against employees, because they have the deep pockets. However, the Supreme Court held that the doctrine of respondeat superior does not apply to federal civil rights suits. The city can be liable for a “pattern or practice” in violation of rights, but not for a single incident merely because it is the employer.

The “woke” crowd wants to repeal qualified immunity for police officers. I have yet to hear a single reason why police officers should be treated any differently from other government employees in this regard. If a police officer can be sued for stopping a person who appears to be casing a store for a burglary, why can’t the Mayor of Seattle be sued for declaring a district of the city outside of the protection of the law, turning it over to outlaws, and denying its residents and business owners the equal protection of the laws?

Repeal of qualified immunity has been a non-starter on the Republican side of the aisle so far, and for good reason. The regime that would be ushered in if the House bill became law would make being a police officer simply intolerable. Every officer who simply does his or her duty in enforcing the law and keeping us safe would be constantly sued by people who want a judge to second-guess the officer’s decision on a debatable question. Who would want to be an officer under those conditions?

Fortunately, Senator Scott is standing firm on that point, but he has indicated a willingness to take another look at the liability of the employer. From the Hill story:

Scott also said victims and families should be able to sue police departments and cities but added that there should be a “moat around the officer” to protect them from civil liability.

There need to be some qualifications, though. The procedures used in federal civil litigation would bog down cities in expensive, protracted litigation over a flood of claims, most of which would be meritless. The bottom-feeders of the legal profession would file suits they know to be groundless just to extract a “nuisance settlement,” a settlement for less than the cost of defending a suit. I had to deal with the bottom-feeders during my stint as a corporate lawyer. It was quite sickening to approve payment of settlement on a claim I knew was garbage, but sometimes it had to be done.

“Summary judgment” is not nearly summary enough. It is absurd that a wrongly sued defendant should have to spend multiple years and large sums of money to have a court declare that a worthless suit is indeed worthless, but that is the reality of civil litigation. So along with municipal liability we need a streamlined procedure to cull out the garbage claims quickly and inexpensively. If the “nuisance value” were small because meritless suits could be disposed of inexpensively, the bottom-feeders would forage elsewhere.

We also need reform of the civil rights attorneys’ fees statute, 42 U.S.C. § 1988. The statute is neutral on its face. Even so, it was misconstrued by the Supreme Court to grant prevailing plaintiffs their fees as a matter of course but prevailing defendants their fees only in extreme cases.

An asymmetric attorney fee statute places a heavy thumb on the scale during settlement negotiations. This has to be changed.

Here is my suggested replacement. Upon entry of judgment in a case that does not settle, the judge makes a determination of whether the winning party’s case was “close” or “clear.” A case is “clear” if the party is entitled to judgment based on (1) facts that are uncontested or proved by clear and convincing evidence, (2) as applied to clearly established law, as that term is used in qualified immunity cases. All other cases are “close.”

If the case is clear, the prevailing party gets an attorneys’ fee award from the other party. If it is close the parties pay their own attorneys. The statute would expressly state that it applies symmetrically to plaintiffs and defendants.

With these enhancements, expanded municipal liability is a subject worth discussing.