Notwithstanding his dalliance with criminal justice reform and his castigation of law enforcement officials he says have abused their powers to target him, Donald Trump has always been inclined to "back the blue" against critics of police policies and practices. That instinct goes back decades, and it has served him well in his current incarnation as a populist politician catering to the anxieties and resentments of Americans who worry that policing has been undermined and compromised by the demands of left-wing agitators. But the latest manifestation of this theme—Trump's campaign promise to "indemnify" police officers who supposedly are paralyzed by fear of civil liability for doing their jobs—is so detached from reality that it belongs in the same category as his insistence that he actually won reelection in 2020.
"We will restore law and order in our communities," Trump said during a campaign rally in New Hampshire last Saturday. "I am also going to indemnify our police officers. This is a big thing, and it's a brand new thing, and I think it's so important. I'm going to indemnify, through the federal government, all police officers and law enforcement officials throughout the United States from being destroyed by the radical left for taking strong actions against crime."
The problem, Trump claimed at a rally in Iowa a few days earlier, is that police are "afraid to do anything. They're forced to avoid any conflict. They are forced to let a lot of bad people do what they want to do, because they're under threat of losing their pension, losing their house, losing their families." To address that problem, he said, "we are going to indemnify them against any and all liability."
Although Trump seems to think indemnification of police officers who are sued for alleged misconduct is "a brand new thing," it has been long been routine practice. In a 2014 study of civil rights cases that covered "forty-four of the largest law enforcement agencies across the country," UCLA law professor Joanna Schwartz found that "police officers are virtually always indemnified." That means they are not personally responsible for settlement payments or jury-awarded damages arising from allegations of police abuse. From 2006 to 2011, Schwartz reported in the New York University Law Review, "governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement."
During that period, Schwartz calculated, "officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs' favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases." She noted that "officers did not pay a dime of the over $3.9 million awarded in punitive damages," and "governments satisfied settlements and judgments in full even when officers were disciplined or terminated by the department or criminally prosecuted for their conduct."
What about legal fees? "Although my public records requests did not seek information about who bears the cost of defense counsel," Schwartz wrote, "several government employees and plaintiffs' attorneys noted in their responses that officers are almost always represented by the city's or county's attorneys, or by attorneys hired by union representatives."
Given this situation, Trump's proposal makes no sense. "The idea that officers need indemnification is frankly absurd," Benjamin N. Cardozo School of Law professor Alexander Reinert told The New York Times, because "they already have it."
To reiterate, Schwartz found that cops were not actually on the hook for damages or settlements in civil rights cases even when their employers decided that their conduct warranted discipline or dismissal. They were not on the hook even when prosecutors decided that their conduct warranted criminal charges. Yet Trump claims that cops "avoid any conflict" and are "afraid to do anyhing" because they worry that frivolous lawsuits will ruin them financially.
In reality, even meritorious lawsuits often do not get far enough that the defendants need the indemnification they would virtually always receive. Under 42 USC 1983, victims of police abuse theoretically can seek damages for violations of their constitutional rights. But thanks to qualified immunity, a restriction that the Supreme Court grafted onto that statute, such lawsuits cannot proceed unless they allege conduct that violated "clearly established" law. In practice, that means plaintiffs must locate precedents with closely similar facts, a requirement that can block lawsuits when police behave in ways that even Donald Trump might consider beyond the pale.
Suppose a cop responds to an erroneous report of domestic abuse by assaulting the woman he ostensibly came to help, lifting her off the ground in a bear hug and throwing her to the ground, thereby breaking her collarbone and knocking her unconscious, because she disobeyed his command to "get back here." Suppose police wreck a woman's home with tear gas grenades after she gives them permission to enter so they can arrest her former boyfriend, who it turns out is not actually there. Suppose police, after chasing a suspect into an innocent family's yard, shoot a 10-year-old boy while trying to kill his dog. Suppose police steal cash and property worth more than $225,000 while executing a search warrant. Suppose police kill a suicidal, gasoline-soaked man by lighting him on fire with a Taser.
As you can see if you follow those links, these are not theoretical examples. These are actual cases where federal appeals courts decided that qualified immunity barred the would-be plaintiffs from even trying to make the case that they deserved compensation under Section 1983.
In an analysis of 252 excessive-force cases decided by federal appeals courts from 2015 through 2019, Reuters found that most of the lawsuits were blocked by qualified immunity. It also found that the share of cases decided in favor of police had risen from 44 percent in 2005–07 to 57 percent in 2017–19.
As 5th Circuit Judge Don Willett observed in 2018, "qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly." Worse, "important constitutional questions go unanswered precisely because those questions are yet unanswered."
Five years later, the barriers to compensation for victims of police abuse remain daunting. "The American legal system regularly leaves constitutional wrongs unrighted," Willett noted this month. "Many worthy § 1983 claims go unfiled, and those that are filed must navigate a thicket of immunity doctrines that shield government wrongdoing, thus turning valid claims into vanquished ones."
According to Trump, by contrast, it is so easy to sue police officers and so easy to recover damages that the prospect prevents them from doing their jobs because it threatens them with financial ruin. None of that is true.
The post Trump's Promise to 'Indemnify' Cops 'Against Any and All Liability' Is Absurd for 2 Reasons appeared first on Reason.com.
