The Justice Action Network and Arnold Ventures hosted a virtual Congressional briefing on Friday, May 14th, 2021, to discuss the latest on qualified immunity, one of the main sticking points in policing reform negotiations. “The Time is Now: A Bipartisan Solution to Policing Reform” served as an opportunity to dispel some of the more common misconceptions about qualified immunity and to shed some light on the benefits of providing greater departmental and municipal liability, a proposal that Sen. Scott is backing. The panel featured: Welcome remarks by JAN President Holly Harris and Events Manager Syrita Bowen; Opening remarks by Congresswoman Bass; Arnold Venture’s Walter Katz as moderator; and a panel including UCLA School of Law’s Joanna Schwartz, Policing Project’s Marie Ponomarenko, and Marc Levin from the Counsel on Criminal Justice. A transcript from the panel discussion is below.
Walter Katz 10:34
Let's get started. So let's first ask, what do we mean by that word accountability. And I generally describe those as the policies and procedures that do several things. First is, they're designed to ensure that officers obey the law, and treat civilians in a lawful, respectful and unbiased manner. Secondly, to ensure that incidents of alleged misconduct are properly reported, and then thoroughly and fairly investigated. Third, to ensure that proven incidents of misconduct result in appropriate discipline, and fourth to ensure that police departments take proactive steps to prevent officer misconduct in the future. So with that, as a background, let's start by asking a broad general question of what are the forms of accountability that occur following a police encounter where a member of the public is harmed, either through alleged excessive force or by some other harm? And by that I mean, those civil administrative or criminal pathways. Maria, could you start by helping describe what those paths are?
Maria Ponomarenko 11:19
Sure things. So first, at the most granular level, there's internal agency discipline. So when an officer engages in misconduct, ideally, the department is going to investigate and hold that officer accountable. If an individual is harmed, they can also bring suit either in state or federal court to seek money damages. And so they can also get compensated ideally for the harm that was caused. And then finally, particularly for kind of more serious or egregious instances of misconduct, there's criminal liability, which is to say an officer can be prosecuted criminally for the actions that they engaged in.
Walter Katz 11:58
Now, in terms of the criminal liability, that can occur both at the federal and state level, is that correct?
Maria Ponamarenko 12:06
Correct. So at the state level, officers can be charged just like anybody else, with assault, with homicide with all of those kinds of classes of crimes, and then at the federal level, the statute somewhat more limited. So an officer can be charged for depriving somebody of their constitutional rights. But in order for somebody to be prosecuted, they have to actually know that they're violating somebody's constitutional rights and intentionally violate them, which turns out to be a pretty difficult bar to meet.
Walter Katz 12:35
Right? Is that that willful deprivation of civil rights standard that we hear about?
Maria Ponomarenko 12:39
Exactly, so that's that willfulness standard, that kind of adds a higher bar. So it's not enough to show that an officer, you know, intentionally fired a weapon or intentionally wanted to assault somebody, you have to actually establish that the officer intended to violate somebody's constitutional rights.
Water Katz 12:57
Okay. I appreciate that. Thank you. Now, when we talk about the administrative investigations, what we're talking about there is that an incident occurs, and the police department or perhaps even a civilian investigative agency, investigates to determine whether or not the officer violated policy. And if there is a finding of a sustained allegation, a decision is made over how the officers should be disciplined, up to and including being discharged or fired from the department. But one of the problems that has been identified is that an officer can be fired for a grievous misconduct in one department, and then show up somewhere else working at a different department. Marc, can you talk about that a little bit about why it is important to have some sort of way to track officer misconduct or whether or not an officer is appropriately certified?
Marc Levin 13:52
Yes, absolutely. And a number of states interestingly, have passed bills relating to teachers who were terminated for, could be sexual misconduct with a student or something far less than that, but nonetheless, perennially poor performance, and other school districts can look up and see that on their record. And so we had that same challenge with police officers. And of course, some federal framework is needed to ensure that across state lines, police departments don't unwittingly hire someone who's had a terrible record in a department in another state. And of course, the other issue that relates to this is, there are not every state has very different standards for decertification. And some have even different standards among departments for what is misconduct. But some states, there are very few officers decertified like Georgia where other states, much higher number are decertified, because it's a different bar. So that's obviously being worked through in the policing language in the House and Senate bills. But one of the other things I also wanted to mention is there are some other forms of accountability potentially in addition to civil and criminal liability, and of course, filing an internal disciplinary complaint. And by the way, it's important to make sure people can File even just a complaint about an officer being rude that they can go online and fill out a simple form because that's frequently not the case. You also have 50 states have compensation funds for victims of police misconduct. But there are lots of limitations, including the person generally, and many of them can have been doing anything wrong, which is, which is really shouldn't be there because two wrongs don't make a right we learn that in elementary school. But beyond all of that, I think the one other thing I'll just mention is many departments, the Policing Project has pointed out that only about half of all police departments even posted up policies online, and then of those, just a handful have it such so that it's searchable and easily accessible. So the average citizen, of course, it's not an issue with the serious use of force misconduct, but with, you know, lesser issues, it's difficult for the average citizen to figure out whether what the officer did was in fact, a violation when the policies are not posted.
Walter Katz 15:59
Yeah, and I agree with you. I mean, if you look at a lot of police departments, they may have policies online, but they may be in an unsearchable PDF image. other departments may have a search function, which is really hard to go through, and others have no policies whatsoever. So you raise a great point. Now, let's turn and we want to spend quite a bit of time on this. Let's turn to civil liability. Joanna, what are the pathways for parties harmed by the police to pursue a civil action? I know that’s a super high level question. But can we start there,
Joanna Schwartz 16:35
Of course, and thank you, to everyone for being here and for having us here. Just as there are both a state and federal pathway for criminal prosecution, there are state and federal pathways for civil lawsuits. In the federal system, there is a statute that was passed during Reconstruction in the years after the Civil War, which is referred to as section 1983, which refers to its place in the US code. But section 1983 allows people to bring claims for constitutional violations, violations of federal constitutional law against individuals who violated their rights. They also can be brought against the local governments if the plaintiff can prove that there was an unconstitutional policy or custom that led to the violation of their constitutional rights. So in that federal system, a person who has had their constitutional rights violated by a police officer can sue that officer for excessive force or unlawful search or arrest, or a violation of their first amendment rights, and also sue the local government employer for having an unconstitutional policy or custom. And they can seek money. They can also seek injunctive relief, court orders that a city stop doing something. There are multiple challenges and standards, including qualified immunity, including difficult standards to overcome to establish city liability and difficult standards to overcome to establish the need for an injunction. But that's the general framework in the federal system. In the state system, you can bring state law tort claims against police officers, there's wide variation, state to state and some states don't allow those kinds of state Tort Claims really to be brought hardly at all others have more lenient systems. And there's variation and rules about when and under what circumstances local governments can be held responsible as well.
Walter Katz 19:05
Well, thank you for that. And I know for some folks who may be listening to this and said that was just a torrent of information. So I'm going to I'm going to try to tease these apart a little bit and kind of take one at a time. A little bit in qualified immunity, then want to talk about that that local municipal liability talked about policy or custom. And finally, about that injunctive relief, because in my view, that is an area which has been not a lot of focus has gone on that but it could be a powerful weapon. So about there's been a lot of discussion lately about qualified immunity. Joanna, can you in a nutshell, explain what qualified immunity is? More for layperson’s understanding?
Joanna Schwartz 19:53
Absolutely. So qualified immunity is a defense that individual officers can raise to protect themselves from these damages suits for money awards. And it's a defense that was created by the Supreme Court back in 1967. It started out as a defense for officers who were acting in good faith. But the standard has shifted. Over time, the Supreme Court has made that standard more and more difficult to get or to overcome. And the Supreme Court first said, we don't have to worry about officers’ intent anymore. Let's just look at whether the law was clearly established, the Supreme Court said, and if it's not, then no constitutional violation. And then the Supreme Court has narrowed and narrowed and narrowed what the definition of clearly established law is. So that today, officers are entitled to qualified immunity, unless the plaintiff in the lawsuit can find a prior court decision from the United States Supreme Court, or from the next level down the court of appeals, that has held virtually identical conduct to be unconstitutional. And that can mean the distinction between whether in the prior case and the current case someone was sitting down or standing up, about whether something was said before, before the use of force happened or not, the size of the person they can be they can be very minor factual distinctions. If there's not a prior case with virtually identical facts, the Supreme Court has said then the officer is entitled to qualified immunity, and the plaintiff in the case will not recover from that officer.
Walter Katz 21:46
So is that based on the concept that the officer has not had sufficient notice that the conduct in question is unconstitutional?
Joanna Schwartz 21:55
That is the, one of the justifications is about financial liability, shielding officers from financial liability. But yes, the driving notion is that officers need notice of those cases. I will say I have just published a study that looks at trainings and policies for California, hundreds of California law enforcement agencies. And what I found is that despite the fact that the Supreme Court says that we have qualified immunity so that officers can be on notice, officers actually aren't training about the facts and holdings of any of the cases that clearly established the law for the Supreme Court's standard. So it is it is like much of qualified immunity. Justification’s really an illusion.
Walter Katz 22:52
There’s so many examples, which are just hair raising. One, for example is after a foot pursuit, the subject voluntarily sat down and raised his hands up and an officer still released his dog who proceeded to seriously injure the individual dog bites and that individual sued, and the officer claimed qualified immunity. There, the court said, we can point to a case where a suspect after foot pursuit, laid down and stretched his arms out and got bit by the dog. But that is not the same set of facts as here. Is that the type of hairsplitting that we are seeing in other types of cases?
Joanna Schwartz 23:36
That is precisely the type of hairsplitting that we are seeing in other types of cases. And unfortunately, there are there are almost too many to count. But one that haunts me personally is a case involving a man named Tony Timpa, who was killed after calling the police himself he was having a mental health crisis, called the police asking for help they came, found him, handcuffed him, tied his feet together and then put their knees on his back and neck for 14 minutes until he died. And the federal court in Texas granted qualified immunity, because there was not a prior case on point. And there have been prior cases. There had been a prior case in the Fifth Circuit, which is the Court of Appeals for Texas sits where it was held to be unconstitutional, to hogtie someone and then put your knee on their neck or back. Hogtying is where someone is handcuffed and their feet are cuffed. And then the hands and feet are attached together. The difference for Tony Timpa, his hands and feet works were both restrained but not attached. And so that's the distinction on which qualified immunity was granted to officers who did something that people around the world have watched and seen over the past year and agree almost unanimously. is a horrific injustice.
Walter Katz 25:08
Thank you for that example that is really Stark. Now, Maria states are often laboratories for new ideas. So before we kind of circle back to what Congress is considering. Can you tell us a little bit about what states like Colorado having been experimenting with and making alterations to qualified immunity?
Maria Ponomarenko 25:29
Sure. So a number of states, Colorado and New Mexico most recently, have abolished qualified immunity as a matter of state law. So what they've basically done is they've created a separate state cause of action to sue an officer for violating an individual's rights under the state constitution. And for that, they've said that qualified immunity doesn't apply. So an officer can be held liable for violating somebody's rights without kind of enjoying that good faith defense.
WK 25:59
And so essentially, it turns the burden on its on its head a little bit right, so that the officer has a higher burden overcome to try to achieve immunity.
Maria Ponomarenko 26:12
Yeah, so states have taken a variety of approaches. So some have flipped the burden. So they've said, basically, if there is a state law or city ordinance that authorizes what they've done, then the officer can still get qualified immunity. So if some, you know, higher authority says what the officer did was okay, then they won't be held liable but it doesn't fall to the plaintiff to say that, you know, nobody before, that a Court has said that with officer did was illegal.
Walter Katz 26:41
Thanks, Marc. Any thoughts on some innovative ideas, which we or Congress can be thinking about on how to make modifications so that the bar is not that high?
Marc Levin 26:55
Yes. And Maria, the last proposal she described was actually Senator’s Braun’s proposal as well in the last session of Congress. So I think that there's so many problems with the current regime. One thing for people to know is that there are judgments paid out now, it's just that it's very hard for plaintiffs to get over the bar, the clearly established test in particular, that Professor Schwartz described. Now, if they do, then they have to hope that the city is going to indemnify the officer because most officers don't carry insurance. And even if they did, it wouldn't have the type of coverage the amount that a municipality would in terms of their own pockets or the municipality’s insurance.
Walter Katz 27:39
We're gonna dive into identification next.
Marc Levin 27:43
So but I do want to just point out 99% of the money that's paid out now is through indemnification. So I know, there are understandable concerns about officers, you know, and their own financial burden. I think that one of the things that's really I think, critical to understand is what Professor Schwartz said about officers aren't reading these court decisions and heck, they've got a busy, and very difficult job. And then the other thing is, there's actually research showing, which we talked about in the Council on criminal justice assessment on this topic, that, that they're not thinking about civil litigation when they make split second decisions, which, you know, is totally what you would think. But there's a market mechanism where you can, through judgments, you can help to influence the practices of a department, including training, for example, to incentivize the types of practices that will make excessive force less likely to happen. And just to give a specific example, even now, there was a small California town called Maywood, and they had an insurance policy. And they had so many claims against them, that the insurance that you’ve got to adopt this list of reforms to reduce excessive use of force. And ultimately, they declined to do so. And what happened is their insurer dropped them and that community went to the is now protected by the sheriff's department, they don't have a police department anymore. So I believe that we can through , that’s an extreme case, but we can through market mechanisms, have a real incentive not so much for the individual officer but for departments themselves.
Walter Katz 29:17
Yeah, thinking through where risk applies and how agencies think about the risks their departments are facing, I think, is an important question, which does tie into that question about indemnification. So let's move on to that a little bit. And let me just for those listening and like to step back for a second and say, let’s say you're a plaintiff, and you brought a lawsuit under Section 1983. And let's say that you are successful, and you've been able to establish that the officer is liable for violating your civil rights, and the city offers a settlement or you go to trial, and there's a judgment in your favor. Who pays? Who writes that check generally, for that successful suit against a police officer, Joanna?
Joanna Schwartz 30:06
It is virtually always the city that pays the check in those cases. And that is for a reason that has nothing to do with qualified immunity. It is because of a concept called indemnification, which is an agreement, a contract that exists in the private sector as well as the government sector, that if a person is sued for work that they are doing for an employer that the employer agrees to provide them with a lawyer and to pay any settlement or judgment entered against them for a harm that arose out of their work. And states across the country have indemnification statutes. They vary in their terms about what they cover and what they don't cover. But there are those protections across the country, by state law, then local governments have their own indemnification policies. Sometimes they're written into union agreements, and sometimes, you know, otherwise. But those indemnification statutes are generally speaking the agreements under which someone is paid if they're successful. So I looked at settlements and judgments in 81 jurisdictions across the country over a six year period, and I found that police officers paid 0.2% of the dollars that were paid to plaintiffs in those cases. 99.98% was paid by local governments. I found two places that confirmed that officers had contributed it was New York, New York City and Cleveland, the average that they paid was officers contributed in those cases was $2,000. Now this does not mean that officers are always indemnified. There are circumstances where local governments refuse to indemnify officers, but for a variety of reasons, it ultimately means that officers still don't pay when they're denied indemnification. It can be that an individual is denied indemnification but the local government agrees to a global settlement that includes their claims. It also is related to the dynamics of civil litigation. And for the reasons that that Marc said most officers don't have the resources to satisfy a settlement or judgment. And so in the rare instance, in which they are actually denied indemnification, there tends to be not much economic reason to go after those officers’ pockets, those officers individually. I want to take just one quick connection to the to the broader point that Marc had mentioned before. This does mean that local governments pay. And there are often stories in the newspaper about the large, you know, many millions of dollars spent on those settlements and judgments. And there are a few examples of cases like Maywood that have small jurisdictions where they have had a bunch of suits and then essentially lost their insurance and had to disband their police department. But in the vast majority of jurisdictions, settlements and judgments make up less than 1% of local governments’ budgets. And even in small jurisdictions, insurance premiums, because those smaller jurisdictions are reliant on premium insurance, those premiums amount to less than 1% of most small jurisdictions budget. So I want to sort of push against the idea that these settlements and judgments are bankrupting officers, and also push against the idea that they're bankrupting local governments.
Walter Katz 33:42
Thank you so much for that explanation. Now, are these settlements that are being paid out by the city, are they are those coming from the police budget or from somewhere else?
Joanna Schwartz 33:53
That’s a great question and there's variation. This is another thing that I have studied, and what I have found is that it can come from a number of different sources. Sometimes it is simply taken from general, the general budget. Sometimes different agencies, including the police department pay into a central fund, and then the money to pay settlements and judgments comes from comes out of that central litigation fund. Sometimes the settlements and judgments are taken from police departments’ budgets, but the formal arrangements don't really tell the full story because in a place like Chicago, settlements and judgments are taken from the police department's budget. But when the police department's litigation budget runs out, they simply go back to the city council and the City Council takes the rest of the money from the central budget, or from another source. So, ultimately, although there is some variation in the formal budgeting arrangements, settlements and judgments in police misconduct suits very rarely have any tangible financial impact on the police department's ability to hire officers. buy equipment and the like.
Walter Katz 35:08
Well, having helped write the Chicago Police Department budget on a couple of occasions, I can attest that your description is 100% right. And that the number put into the budget at the beginning of the year, may or may not reflect what happened in the prior year. But yes, then that number is blown past, and then we just pull it back out from somewhere else. And I think that's important for people to know that ultimately, when we talk about officer or agency liability, we're talking about the taxpayer’s money. And so when we're talking about police policies, or police behavior, that is not just a person who is directly impacted to have that encounter, it is also the dictating where our resources go from our tax money in the future. So if we think about that, about liability costs, and we think about people who are harmed being made whole. Maria, how do we keep track of that? I mean, you've done quite a bit of work on thinking about data collection and data transparency. When it comes to litigation, what is it that that that jurisdictions should be collecting and publicizing?
Maria Ponomarenko 36:26
So that's a great question. So first, if I can just take a step back for a moment, I mean, it seems really jarring to say that, you know, we're the ones who are on the hook for officer misconduct. But I do think it's important to remember that no, officers aren't free agents. So officers can't, you know, put up a shingle and become a cop and go out there and police I mean, they are policing on behalf of agencies. And lots of the issues that we see in policing are because agencies tell them to go out and, you know, stop lots of people in ostensibly higher crime neighborhoods or to engage in, you know, various forms of conduct that generate a lot of harms. And so that's just important to remember, as we talk about these liability structures is there's a reason why agencies pay. But as to your question, you know, one of the reasons why we don't really see a lot of consequences for cities or for agencies is because people don't know what is being paid out. And so we have a draft transparency statute that would require agencies to report every single settlement and judgment to make clear, you know, generally what the allegation was, how much was paid out and to kind of report this on an ongoing way, both on the own kind of agencies website, but also to report it to the state so that it's possible to kind of aggregate data from all agencies and apply it and compare agencies across the board. And California, I know, has proposed something along these lines. But as far as I know, that's the only state that's considered it.
Walter Katz 37:52
And Marc, how to bring more sunshine to this?
Marc Levin 37:56
Well, sure. And I think, actually, we need to bring sunshine to the origin of qualified immunity, because it wasn't a law passed by Congress. It was a judicial doctrine that the Supreme Court kind of superimposed on section 1983. And, of course, Justice Clarence Thomas, among others has pointed out that it really was not, contrary to what the Supreme Court said, established in common law. So it was wrong to assume that Congress intended to have this exception when they didn't put in anything in Section 1983 in the language to create it. But to the extent there was an exception, common law was really around ministerial actions where an officer for example, the warrant, the officer got from a judge had the wrong person, wrong name on it. IT didn't in common law applied to discretionary conduct, like excessive use of force, which is obviously most of what we're talking about today. So the other thing that I think is just really important is to bring in this issue of sovereign immunity and the Monell decision, because that Supreme Court decision basically said, you can only directly sue the agency or the local government, if you can show they had a policy or a custom of depriving people of their civil rights and who's going to write that down? So it's, for all practical purposes, it's impossible to sue the agency directly. So their liability is derivative through indemnity from being able to hold the officer liable. But what happens in situations where, let's say the real fault wasn't with the officer at all, but it was just bad policies, lack of training on the part of the department. And if we actually, if Congress actually reversed the Monell decision, we wouldn't have to have the sovereign’s liability entirely tied or tied even at all to the officers and people could more easily just sue local government. Now that brings in finally though the issue of the taxpayers, right. And I think that if you look at medical malpractice, for example, many states have capped damages on how much you can get and in terms of not compensatory, but punitive and in some places pain and anguish. So because they didn't want to put doctors or hospitals out of business, but they did want to ensure people that are injured or in some cases sadly, their survivors could at least get a just and reasonable award for compensatory damages. So that's kind of, I think, hopefully gives people a sense of the backdrop to this from both a legal perspective and a perspective, making sure that, you know, the overall rule should be where there's an injury, there's a remedy. And that has to guide us, I think here.
Walter Katz 40:21
That's a great phrase about the remedy. Let's unpack this question a little bit about municipal liability or local government liability. Analogies are always tricky. So let's create one anyway, An airline pilot, he's employed by an airline. And he decides to one day land a plane at Midway Airport, and not fully deploy the landing gear, and it doesn't go well. And, you know, there's injuries, people are harmed. Let's say in this example, luckily, nobody gets killed, but people are hurt. But who is ultimately responsible in such a situation? Is the employer? And doesn't that make sense that the employer is held responsible for the actions of the employee while he was operating in the course of business? Joanna does that apply the same way to a police officer who's an employee of the city?
Joanna Schwartz 41:28
No, in those circumstances, so if you imagine the current standards for civil rights suits to apply to your example, the plaintiff who was injured on that plane, in order to hold the airline liable, they would either need to find a policy in the airline's policy manual saying, you do not need to deploy your landing gear when you're landing. unlikely to happen. They would need to have, this pilot if they wanted to make a claim that he was improperly hired, that that pilot in the past had failed to deploy his landing gear. So in other words, that he had done precisely the same thing, not just that they were on notice that he was a bad pilot, but that he was a pilot who didn't use his landing gear. And also very difficult to find. Or third, for a failure to supervise. And they would need to show that this pilot and or and/or other pilots had failed to use their landing gear multiple times. Not just that they were bad pilots, but they had failed to do this precise thing multiple times. So that failing to train them about this would be a deliberate indifference. And you can see I'm not I'm not exaggerating here, there's a Supreme Court case with a man who was prosecuted by the New Orleans prosecutor came within a year of the death penalty, when it was revealed that the prosecutors had failed to turn over blood evidence that showed that he was innocent. And there that same prosecutor's office had had multiple other exonerations for failure to turn over evidence. The Supreme Court said that was not enough, because even though it’s very rare that it comes to light that a prosecutor has failed to disclose evidence under their constitutional obligations, there had been multiple in this in these circumstances. But those other circumstances didn't involve blood evidence. And even though prosecutors aren't trained about their obligations to turn over this kind of evidence, it doesn't vary based on the type of evidence, but because it wasn't exactly the same, the Supreme Court said they were not deliberately indifferent. They didn't know that they had to train them differently. And so betting to establish local government liability is as difficult although different than proving qualified immunity for qualified immunity, the plaintiff has to find a prior court decision with virtually identical facts that happened to someone else. For local government liability, the plaintiff has to find that other people or the officer in the case, did the same thing. And it was found to be wrong in the past, and that the policymakers knew about it. So it's a very difficult standard to get. As we've discussed, as a practical matter, even if a local government is not found to have this unlawful policy or custom, they may still end up paying through indemnification. But we've also talked about the fact that that's not certain. And there have been multiple instances that I've found in my research where local governments have used the threat that they will deny officers indemnification In order to gain strategic benefits at trial, or to gain a reduced settlement, I've seen examples of government attorneys having their law enforcement officer defendants testify about their limited resources and their mortgages and their child support payments as reasons to not have to pay damages or reduce the damages that they have to pay only to indemnify them at the end. So a benefit of I think that having joint and several liability between the individual officer and the local government makes the most sense. And it would mean that local governments could not use that threat of denying indemnification to avoid those kinds of harms. But bringing the claim against a local government and expecting that that will solve the problems with qualified immunity, for example, really doesn't hold water, because there are so many challenges in bringing those claims as well.
Walter Katz 46:05
Maria, with all those challenges, at the top, I described the four types of accountability. And the fourth was ensuring that police departments take proactive steps to prevent officer misconduct in the future. If we think about civil liability or civil litigation as perhaps creating an incentive to take proactive steps, I'm not hearing much of an incentive here. What are your thoughts about that?
Maria Ponomarenko 46:33
Well, so that's exactly the problem, which is, you know, ordinarily, it's the threat of liability, that potential that you know, misconduct is going to be really expensive for the agency or that their premiums are going to go up, that creates the incentive to, you know, invest in actually reducing the risk of harm, to invest in training, to invest in policy development, so that officers aren't engaging in practices that are likely to generate injury. And that's partly what's missing is that feedback loop. So officers are rarely held liable. Agencies are rarely held liable. And so as a result, we don't have that kind of external incentive for departments to make change.
Walter Katz 47:13
So I'm staying cognizant of the time, this has been a fabulous conversation. So before we open for q&a, I want to do this I want I want to go around a table. And you know, hand each of you that the metaphorical magic wand and ask, you know, what is it within this realm of what we've been talking about--qualified immunity, municipal liability, indemnification? We didn't even talk about the lions cases or, you know, trying to seek injunctive relief, what is it that you would think would be a powerful policy change in this realm? Maria?
Maria Ponomarenko 47:53
So I mean, I tend to be with Joanna in the sense that we should, in theory have liability for both officers and agencies. But I guess if I had to pick one, I would say municipal liability. You know, as I mentioned, again, officers aren't going out there and making these choices on their own. They work for agencies and its agencies that are deciding what they can and can't do. And so if there's one choice that would be to ensure that agencies have that incentive to affect change.
Walter Katz 48:18
Marc, how about you? Thank you, Maria.
Marc Levin 48:21
I agree with that. And in fact, you know, with the Amazon driver, that's another example not to pick on them. But if they run you or your child over in the neighborhood today, heaven forbid, the driver is negligent, at least in Texas, I can tell you Amazon's gonna have to pay. And, you know, it's because it's within the scope, as you said earlier, within the scope of your employment, and so even if the driver was just negligent, he didn't intentionally do it, Amazon is gonna pay for that, and their insurer. What happens is, of course, officers who have numerous verified complaints and judgments against them, and it's a very small percentage, account for the vast majority of misconduct, they will become unemployable. And that's how that incentive can work even just through departmental liability. And you know, so I think that that's very promising. And I really think we have to focus on the fact that the current system is producing inconsistent results. And so when you have those cases that do get through the, you know, clearly established bar, right, you might get a payout, it could be 50 100 150 million, there's no limit. And, and I think that as we hopefully make these changes, to open this to more cases, more people getting at least compensatory damages, we do have to look at, you know, the fact that we may need some limit, for example, on punitive damages, just so that the system continues to be affordable. And I believe that actually having more cases result in some justice will incentivize change more than just having a handful of cases get through and then have a few extremely large awards.
Walter Katz 49:53
Very interesting thought Marc. Joanna, last to you with your magic wand.
Joanna Schwartz 49:59
Well, you know, the way my magic wand works, it doesn't just attack one problem. You know, it If I had my magic wand, it would do a lot of things. And I think that key to, you know, maybe a key takeaway from the question, not to fight the hypothetical, is that there are multiple barriers. Qualified immunity is, is one. And I think it's very important. And I think symbolically It is very powerful. And for those reasons, I think it is it is important to eliminate. And, you know, that might be my first step. But it would certainly not be my only step because I think that if we are going to have section 1983 suits compensate and deter, which is what the statute was intended to do when it was passed in the years after the Civil War, we need to make sure that local governments are paying. Absolutely, I do think that whether through indemnification or vicarious liability or joint and several liability, but then we also need to make sure that these lawsuits deter. And creating, whether it's a feedback loop to make sure that information from these suits are integrated into local government decision making. Whether it is ensuring that those officers suffer some manner of financial sanction as the Colorado statute that's been recently enacted does, if it is local governments requiring that as a condition of budgeting and indemnifying officers that local governments and police departments do more with that information, and have some manner of that built into accreditation requirements, for example. I think there's a lot of different ways to achieve the deterrence piece. The compensation piece needs to happen through to my mind, local government, picking up the tab, but I want to do that in a way that still maintain some manner of deterrence for the individual officer as well as department.
Walter Katz 52:05
Well, thank you so much for that and we only have time for a couple of questions. We’ve received quite a few. One question that I see, and this comes up a lot: Should officers be required to carry their own individual professional liability insurance? What would that accomplish, what are some of the pitfalls we should be thinking about? Marc?
Marc Levin 52:26
Well I think it’s something we should definitely look at. I think we need to figure out what the cost would be but I think it’s the case where officers have insurance now, individual insurance, their departments typically pay the premiums, so I think that in fact it probably would be affordable. And again that’s going to depend on if we’re going to have successful claims, which I think we need, making sure that you don’t have a punitive damage award of, you know, $200 million or something like that that is going to drive up everybody’s premiums which we’ve dealt with here in Texas with obstetricians, so that’s how we ended up with medical malpractice caps. But yes, I think it would be desirable because it would, in addition to of course insurance for agencies, would promote a market mechanism to address this problem.
Walter Katz 53:15
Thanks. And Joanna, I had a question here. What do you think is, and we may have already touched on this, one of the biggest misconceptions about the qualified immunity discussion going on right now?
Joanna Schwartz 53:30
Terrific. I think that when defenders of qualified immunity say the same things about the doctrine and it’s really a scary story about what would happen if qualified immunity were to go away and the argument is basically that officers who are making good faith mistakes will be bankrupted for those mistakes. We’ve talked already about one of the reasons that that’s not true, which is that officers virtually never pay, even when that qualified immunity is defeated because of these indemnification rules. The other really important thing to keep in mind is that good faith mistakes, reasonable mistakes, made under the split second decisions is already protected by the constitution. The United States Supreme Court has interpreted the Fourth Amendment, which protects against unreasonable searches and seizures, to allow officers to make mistakes. If they’ve made reasonable mistakes, they have not violated the constitution. The language of a case called Graham vs. Connor, which sets the standard for excessive force, explicitly says we should look at officer’s behavior under the totality of the circumstances, recognizing that they need to make split-second judgments, not from 20-20 hindsight. And so this discussion about why qualified immunity is necessary turns on two things, two qualities that already exist in the system without it: widespread indemnification, virtually certain indemnification, and the protections of the Fourth Amendment, which already protect officers from constitutional consequences for making good faith mistakes.
Walter Katz 55:30
Fabulous conversation. Amazingly, we’re already at time. I want to thank all three of our panelists. Maria Ponomarenko, Marc Levin, and Joanna Schwartz for joining us to discuss these questions of accountability relating to civil liability as well as criminal liability. Thank you so much for your in-depth answers and really for all three of you for your years of work you’ve put into these really critical topics.