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Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. ___ (forthcoming 2014).

Whenever I teach criminal procedure I arrange for a police officer to talk to my students.  It’s always a fascinating class.  I remember one time in particular when a student asked an officer whether the officer would be more unhappy if evidence he found was excluded from trial on Fourth Amendment grounds, or if he faced personal liability in a civil damages suit under section 1983 for a Fourth Amendment violation.  With absolutely no hesitation, the officer said that he would be much more unhappy if he had evidence excluded in a criminal case, and that he simply didn’t worry about section 1983 because an occasional lawsuit was par for the course.

At the time, I thought it was a surprising answer and so did my students.  Wouldn’t most officers be more concerned about a lawsuit that could expose them to personal financial liability?  That assumption seems to have driven much jurisprudence in the constitutional litigation arena—for example, the doctrine of qualified immunity is premised on the notion that officers need breathing room to do their jobs without worrying incessantly about crippling financial liability.

After reading Professor Joanna Schwartz’s article Police Indemnification, however, the officer’s response began to make a lot more sense to me.  Through detailed empirical research, Schwartz provides an unprecedented contribution to our understanding of the practice of indemnification of police officers by the jurisdictions that employ them.  One of the most impressive features of her research is its scope:  Schwartz sent public records requests to seventy of the largest police departments and law enforcement agencies, seeking information about the amount spent in judgments and settlements from 2006 to 2011.  She followed up on these public records requests with emails and phone calls to risk managers, city attorneys, city council staff, city clerk employees, and plaintiffs’ attorneys in the relevant jurisdictions, ultimately obtaining useable data from forty-four jurisdictions that included twelve of the country’s twenty largest law enforcement agencies and nearly 20% of the country’s sworn law enforcement personnel.

Professor Schwartz’s data yield a stark finding:  police officers are virtually always indemnified.  Officers contributed to judgments in just 0.44% of the 8600 civil rights settlements and judgments to plaintiffs, and their contributions amounted to a mere 0.02% of the $760 million that states, cities, and counties paid out in these cases.  And even in cases involving punitive damages—where the officers’ conduct was presumably most egregious—officers paid only 0.005% of the $3.8 million in punitive damages judgments entered against them.

Using the same methodology, Professor Schwartz is in the process of contacting 70 small and midsize jurisdictions. As of the most recent draft, she had heard from 30, and the number will likely increase by the final draft. In every known instance, these jurisdictions indemnified their officers as well.

One of the most remarkable findings is that governments often indemnified officers even when indemnification was directly prohibited by statute. For example, municipalities frequently indemnify for punitive damage awards, even when the relevant statute expressly forbids such payment. Even when officers were terminated or sanctioned by their employers, the officers still generally did not contribute financially to the judgments against them.

Despite the likelihood of indemnification, Schwartz also found anecdotal evidence that municipalities use the possibility of a refusal to indemnify as leverage in settlement negotiations with plaintiffs, even if the municipality almost inevitably indemnified the officer in the end.  In keeping with the careful approach of her overall project, Schwartz takes no position on whether attorneys for municipalities deliberately inflate the possibility that they will not indemnify an officer to pressure plaintiffs to accept settlement agreements.  Given the starkness of the overall data, however, it seems to me that in some instances such leveraging is, at a minimum, quite misleading.

Schwartz’s work is important both because it fills a gaping empirical hole in the literature and because it runs counter to many of the assumptions that courts have made when deciding issues relating to monetary claims against law enforcement officers.  The contours of the doctrines of qualified immunity, municipal liability, and punitive damages, among others, have evolved as they have in part because courts have assumed that at least some of the time officers pay out of their own pockets when they are sued.  So Schwartz’s striking empirical evidence to the contrary should prompt courts to rethink these doctrines and litigators to reexamine their strategies.  Indeed, her work provides an impressive example of precisely how useful and practical legal scholarship can be.

Of course, all research has its limits, and some questions bear further examination.  For example, Schwartz suggests that perhaps the concern of over-deterring police officers in doing their jobs is less important than we thought it was, given that most officers can likely count on indemnification.

But other factors arguably (over-)deter police officers as well.  For example, even an officer who is 100% certain that he will be indemnified still may desperately wish to avoid the stress, publicity, and personal exposure of a lawsuit.  I suspect that at least some officers would pay some amount of money in order to avoid the psychological and administrative hassles of personal-capacity litigation. And even when an officer is more than 99% sure that he will not have to pay, statistical unlikelihood does not always yield reassurance or prevent over-deterrence. (If it did, then far fewer people would struggle with fears of flying or avoid flying altogether.)

Future research might usefully examine the perceptions of officers themselves.  What percentage of police officers know that they’re extremely unlikely to end up paying out of pocket for civil rights violations?  Do they even know that a personal judgment in a civil rights suit is a theoretical possibility?  If officers don’t know, then perhaps Schwartz’s findings have less impact on deterrence than we might expect, despite their many other troubling implications.

I hope that future research will take an empirical approach to these and other important questions.  For now, Schwartz’s work provides an important contribution to an area that has long cried out for empirical examination.  Courts, commentators, governmental agencies, litigators, and police officers would do well to read her work and consider carefully its implications.

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Cite as: Nancy Leong, Police Don’t Pay, JOTWELL (November 7, 2013) (reviewing Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. ___ (forthcoming 2014)),