However his dalliance with prison justice reform and his castigation of legislation enforcement officers he says have abused their powers to focus on him, Donald Trump has all the time been inclined to “back the blue” towards critics of police insurance policies and practices. That intuition goes again many years, and it has served him nicely in his present incarnation as a populist politician catering to the anxieties and resentments of People who fear that policing has been undermined and compromised by the calls for of left-wing agitators. However the newest manifestation of this theme—Trump’s marketing campaign promise to “indemnify” cops who supposedly are paralyzed by concern of civil legal responsibility for doing their jobs—is so indifferent from actuality that it belongs in the identical class as his insistence that he really gained reelection in 2020.
“We will restore law and order in our communities,” Trump said throughout a marketing campaign rally in New Hampshire final 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 issue, Trump claimed at a rally in Iowa just 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 handle that drawback, he stated, “we are going to indemnify them against any and all liability.”
Though Trump appears to suppose indemnification of cops who’re sued for alleged misconduct is “a brand new thing,” it has been lengthy been routine observe. In a 2014 research of civil rights instances that lined “forty-four of the largest law enforcement agencies across the country,” UCLA legislation professor Joanna Schwartz discovered that “police officers are virtually always indemnified.” Which means they don’t seem to be personally liable for settlement funds or jury-awarded damages arising from allegations of police abuse. From 2006 to 2011, Schwartz reported within the New York College Legislation Evaluate, “governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.”
Throughout that interval, 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 famous 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 authorized charges? “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 example, Trump’s proposal is unnecessary. “The idea that officers need indemnification is frankly absurd,” Benjamin N. Cardozo Faculty of Legislation professor Alexander Reinert informed The New York Occasions, as a result of “they already have it.”
To reiterate, Schwartz discovered that cops weren’t really on the hook for damages or settlements in civil rights instances even when their employers determined that their conduct warranted self-discipline or dismissal. They weren’t on the hook even when prosecutors determined that their conduct warranted prison expenses. But Trump claims that cops “avoid any conflict” and are “afraid to do anyhing” as a result of they fear that frivolous lawsuits will spoil them financially.
In actuality, even meritorious lawsuits usually don’t get far sufficient that the defendants want the indemnification they’d nearly all the time obtain. Beneath 42 USC 1983, victims of police abuse theoretically can search damages for violations of their constitutional rights. However due to certified immunity, a restriction that the Supreme Court docket grafted onto that statute, such lawsuits can not proceed except they allege conduct that violated “clearly established” legislation. In observe, which means plaintiffs should find precedents with intently related details, a requirement that may block lawsuits when police behave in ways in which even Donald Trump may contemplate past the pale.
Suppose a cop responds to an misguided report of home abuse by assaulting the lady he ostensibly got here to assist, lifting her off the bottom in a bear hug and throwing her to the bottom, thereby breaking her collarbone and knocking her unconscious, as a result of she disobeyed his command to “get back here.” Suppose police wreck a lady’s dwelling with tear gasoline grenades after she offers them permission to enter to allow them to arrest her former boyfriend, who it seems just isn’t really there. Suppose police, after chasing a suspect into an harmless household’s yard, shoot a 10-year-old boy whereas attempting to kill his canine. Suppose police steal money and property value greater than $225,000 whereas executing a search warrant. Suppose police kill a suicidal, gasoline-soaked man by lighting him on hearth with a Taser.
As you may see when you comply with these hyperlinks, these will not be theoretical examples. These are precise instances the place federal appeals courts determined that certified immunity barred the would-be plaintiffs from even attempting to make the case that they deserved compensation below Part 1983.
In an evaluation of 252 excessive-force instances determined by federal appeals courts from 2015 via 2019, Reuters discovered that a lot of the lawsuits have been blocked by certified immunity. It additionally discovered that the share of instances determined in favor of police had risen from 44 % in 2005–07 to 57 % in 2017–19.
As fifth Circuit Choose Don Willett noticed 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.”
5 years later, the limitations to compensation for victims of police abuse stay daunting. “The American legal system regularly leaves constitutional wrongs unrighted,” Willett famous 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.”
In response to Trump, against this, it’s so straightforward to sue cops and really easy to get better damages that the prospect prevents them from doing their jobs as a result of it threatens them with monetary spoil. None of that’s true.