police liability

Back the Blue? Congress is Trying to Make it Impossible to Sue Police

The Washington Post reported yesterday on a bill that has been introduced by the GOP in both the House and Senate, the “Back the Blue Act of 2017.” If passed, the bill would create new federal crimes that include mandatory minimums and the federal death penalty for degrees of assault on a federal official, and it would allow the feds to take over cases from local prosecutors that involve an assault on a federal official. More importantly, it would impose preconditions for any lawsuit against a police officer that would effectively make it impossible to bring suit even in the worst cases.

The King Can Do No Wrong

The default state of U.S. federal and state government liability was dictated by rex non potest peccare, or the king can do no wrong. It’s an ancient principle adopted from the law of kingdoms where the king creates the courts and therefore cannot be sued through those courts. Today, it is possible to bring suit against government entities and government employees (police) in the United States only where the government has given citizens permission to do so under the federal or state tort claims acts or under 42 U.S.C. Section 1983, also known as a “1983 action.” The tort claims acts severely limit potential damages that may be recovered, the statute of limitations in which an action must be filed, and limits named defendants to government entities only.

1983 actions have a broader scope, allowing a plaintiff to name individual defendants and to recover a broader range of damages for violation of a person’s civil rights, including First Amendment, Fourth Amendment, and Eight Amendment violations. Both tort claims act and 1983 actions are also limited by the courts which have made it extremely difficult to successfully bring suit under either type of lawsuit. Police officers are protected by qualified immunity, a doctrine that requires the plaintiff to prove not only that their rights were violated by a police officer but also that a reasonable officer would have been aware that they were committing a violation.

Most lawsuits fail on the strict qualified immunity requirements. If this was not enough, there has always been a clear bias in the courtroom in favor of the police officer. In my own cases, I experienced judges who would bend over backward to ensure that a case is dismissed or to influence jurors’ decisions. I have also experienced jurors who ignored otherwise unquestioned videotaped evidence in favor of an officer’s perjured testimony.

Who Does Back the Blue Protect?

Not law-abiding police officers. The current system effectively weeds out all potential frivolous lawsuits as well as many that have merit. There is no crisis of non-meritorious lawsuits against good police officers. This proposed law will protect police officers who abuse their power. It will protect officers who commit unnecessary violence and murder. It will protect the worst of the worst and leave American citizens with no recourse when they are victimized by law enforcement officers.

The bill would add language to 42 U.S.C. Section 1983 that provides further immunity for police officers where the plaintiffs are themselves accused of committing a felony offense or crime of violence:

(2) in any action seeking redress for any deprivation that was incurred in the course of, or as a result of, or is related to, conduct by the injured party that, more likely than not, constituted a felony or a crime of violence (as that term is defined in section 16 of title 18, United States Code) (including any deprivation in the course of arrest or apprehension for, or the investigation, prosecution, or adjudication of, such an offense), a court may not award damages other than for necessary out-of-pocket expenditures and other monetary loss.

If you think this through to its logical conclusion, it gives the police permission to abuse, beat, and even murder citizens so long as the citizen was committing a crime at the time. Or as long as the police say they were committing a crime. There is no requirement of a conviction for a crime and the defense in a 1983 action need only prove the crime by a preponderance of the evidence which means more likely than not.

Police already charge suspects with resisting arrest or assaulting an officer in any case where they are afraid of civil liability. They are backed up by prosecutors who will insist on conviction of the victim in any case where the officer used excessive force or overstepped their bounds.

Consider the following scenarios where police will no longer be held accountable:

  • Police raid a house where they suspect drugs are being used or sold. As long as there are drugs in the house, police under the “back the blue” bill can beat, shoot, or kill the occupants without any possibility of civil liability.
  • Any time a police officer wrongfully arrests or assaults a person, that person will be charged with resisting arrest or assaulting the officer which can be charged as a felony in most jurisdictions. In most cases, the officer’s word that the wrongfully arrested person committed a felony assault will provide immunity from lawsuit.
  • As long as a person is charged with a felony offense, police will now be immune from civil suit for any action they take during the arrest, investigation, or prosecution. They are free to violate any constitutional right of the suspect without accountability.

The bill also ensures that no attorney will take these cases by adding a provision that will take away a plaintiff’s ability to recover their attorney fees in a 1983 action where the person is also accused of a felony. The attorney fees provision that currently applies to 1983 actions has operated to create a type of “private attorney general” which allows private attorneys to be compensated for bringing these cases even when the resulting monetary judgments are low. In many cases, it is the only mechanism left to hold the police accountable and enforce constitutional rights. As a general rule, police do not police the police. They protect their own. And prosecutors only prosecute the police when public opinion demands it which is not very often.

If you believe that there is a crisis of greedy plaintiffs suing law enforcement officials, that police or prosecutors do not lie, that police do not abuse their authority, or that there is some need to further limit police liability, you have been duped.

This “back the blue” amendment will back only the worst of the offenders wearing blue. It will provide immunity to the worst of the worst, those officers who are beating, jailing, and even murdering citizens. It will back those officers who intentionally ignore constitutional protections during their investigations or arrests. It will back the police officers who cheat and lie to insulate themselves from accountability. If what you want is a police state where our citizens have no recourse against abuses of power and violence by our government’s agents, rejoice because this will bring us one great leap closer to your goal.