In the wake of the tragic death of George Floyd, accountability has been the watchword for all concerned Americans. This has resulted in charges against the four police officers, but that does nothing to compensate his family for their losses. Only the civil justice system can do that.
House Democrats have introduced a bill dealing with police misconduct, including a provision that would scale back with the defense of qualified immunity, which almost always enables police accused of conduct such as that used with Floyd to avoid paying damages for their wrongful acts. The Supreme Court also has several pending cases for which victims of wrongful acts by the government are asking the justices to modify that doctrine, which the Supreme Court itself had founded more than three decades ago. Such efforts have great intentions, but they will not solve the problem because, while they might enable the plaintiffs to win their cases, they will do nothing to assure they recover their losses.
The case of Floyd significantly illustrates the problem. Even if the qualified immunity defense were eliminated entirely, and his family were to obtain a judgment against the four police officers, they could still not collect more than a tiny fraction of it. While law enforcement officials are paid decently, they do not have money to pay awards running upward in the hundreds of thousands or millions of dollars. Further, this assumes that the defendants have not been fired or are not serving lengthy sentences for their criminal conduct. The Civil Rights Act of 1871, under which cases of this kind have been brought, precludes governments that employ the offending officers from getting held financially responsible in cases like this one.
Fortunately, Congress would be able to solve this problem by amending the Civil Rights Act of 1871 and make the employers of law enforcement officers liable for the misdeeds of their employees to the same extent as private employers could be held liable for their workers. If a department store security officer used unreasonable force in detaining a suspected shoplifter, the store owner would have to pay the damages awarded at trial, with no defense like qualified immunity available to use.
That is already the rule for federal law enforcement officers. The Tort Claims Act of 1946 was primarily enacted to make the United States responsible for routine tort cases, such as negligence of postal truck drivers. There was initially an exclusion for most forms of intentional misconduct by federal agents. In 1971, the Supreme Court found that Federal Bureau of Investigation agents could be held liable for, in this case, violations of the Fourth Amendment rights of the person whose home they unlawfully entered in the course of an investigation.
Then three years later, Congress recognized that the United States must defend those cases and pay for the damages of any claim that arises “out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution,” if conducted by someone “empowered by law to execute searches, to seize evidence, or to make arrests for violations of federal law.” So if a Drug Enforcement Administration agent killed Floyd during the process of arresting him, his family could have successfully sued the United States, without any qualified immunity defense.
To remedy the qualified immunity problem, Congress must not tinker with the doctrine, but instead amend the law to provide that the employer of a law enforcement officer whose conduct has involved assault, battery, false arrest, abuse of process, or a malicious prosecution is liable to any person who is injured by that conduct and that the defense of qualified immunity is not available to the employer. Local governments will doubtless cry that this law would cost them considerable money, but that begs the question of who must bear the loss. Should it be the victim or the city?
Moreover, some companies are happy to sell municipal liability insurance to those entities that choose not to insure themselves, just like they sell it to private businesses that employ security guards and others who may be prone to commit those same types of wrongful acts. The need for cultural changes in the attitudes and practices of our society cannot be doubted, but Congress cannot legislate them. It can, however, solve the qualified immunity problem today. So what are lawmakers waiting for?
Alan Morrison is a professor who teaches constitutional law and the Lerner Family Associate Dean of Public Interest for George Washington University.