Police indemnification

New York University Law Review

Volumn 89, Issue 3, 2014, Pages 885-1005

  Schwartz, Joanna C ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84902355295     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (425)

1. By "police misconduct cases," I refer to cases brought against law enforcement agents and agencies under 42 U.S.C. § 1983 and, additionally or in the alternative, cases brought alleging corresponding state law torts of assault, battery, false imprisonment, intentional infliction of emotional distress, and the like. This study does not focus on other types of litigation, including automobile accidents and internal employment actions brought by officers, although my data suggests that the findings would be the same for all types of cases in which law enforcement officers are named as defendants
2. Infra notes 129-30 and accompanying text (finding that officers almost never contribute to settlements in any type of case)
3. Appendix B (setting out the amount paid to plaintiffs in all types of cases, not only civil rights cases, and the amount contributed by officers to those settlements and judgments in large jurisdictions that provided such information)
4. See also note 131 and accompanying text (finding that officers did not contribute to settlements or judgments in any type of case in the small and mid-sized jurisdictions in my study).
5. By "civil rights doctrine," I refer to the doctrine that governs claims brought under 42 U.S.C. § 1983. This Article does not address claims brought against federal actors, although the Supreme Court also assumes that federal agents-like local law enforcement officers-are financially responsible for settlements and judgments entered against them
6. Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials' Individual Liability Under Bivens, 88 Geo. L.J. 65 (1999) (describing the "legal fiction" of individual accountability that underlies Supreme Court jurisprudence and concluding that most federal officers are indemnified).
7. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
8. Malley v. Briggs, 475 U.S. 335, 341 (1986).
9. Harlow, 457 U.S. at 814 (alteration in original) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949))
10. Officers may fear both financial liability and other, nonfinancial effects of being named a defendant
11. See infra notes 267-82 and accompanying text (discussing the nonfinancial effects of civil litigation on officers).
12. David Jacks Achtenberg, Taking History Seriously: Municipal Liability Under 42 U.S.C. § 1983 and the Debate over Respondeat Superior, 73 Fordham L. Rev. 2183, 2187-91 (2005) (describing municipal liability theories).
13. See infra notes 47-50 and accompanying text (discussing the Court's reliance on the legislative history of § 1983 in this context).
14. Smith v. Wade, 461 U.S. 30, 56 (1983).
15. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
16. Lant B. Davis, John H. Small & David J. Wohlberg, Suing the Police in Federal Court, 88 Yale L.J. 781+810-812 (1979) (finding, in a 149-case sample of § 1983 lawsuits brought in the District of Connecticut from 1970 to 1977, that "[t]he individual defendants were almost always indemnified" and, "in almost every case, the individual defendant suffered no financial loss because of the suits")
17. Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 Cornell L. Rev. 641, 686 (1987) (finding no evidence of officers paying directly for a judgment in the court records of civil rights cases filed in the Central District of California in 1980 and 1981).
18. John C. Jeffries Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47+50 & n.16 (1998).
19. Peter H. Schuck, Suing Government: Citizen Remedies for Official Wrongs 85 (1983)
20. See also infra notes 75-76 and accompanying text.
21. See infra note 77 and accompanying text (describing this hypothesis).
22. See, e.g., Jeffries, supra note 12, at 50 n.14 (citing Davis, Small & Wohlberg, supra note 11, and noting that "[a]side from this useful but dated work, there is a dearth of scholarly attention to the question of who actually pays § 1983 claims")
23. Marc L. Miller & Ronald F. Wright, Secret Police and the Mysterious Case of the Missing Tort Claims, 52 Buff. L. Rev. 757, 760 (2004) ("[T]he most important and revealing features of litigation against the police [are] hidden in the dark: who pays, and who is held accountable for the payments?").
24. Richard H. Fallon Jr., Asking the Right Questions About Officer Immunity, 80 Fordham L. Rev. 479, 496 (2011).
25. Available evidence indicates that lawsuits also have limited nonfinancial effects on officers. See generally Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. Rev. 1023 (2010) (finding that law enforcement agencies rarely gather and analyze information from lawsuits brought against them and their officers)
26. See also infra notes 279-82 and accompanying text (describing studies indicating that the threat of being sued has little effect on officers' behavior).
27. See infra notes 134-37 and accompanying text, notes 254-57 and accompanying text, and the Conclusion for discussion of some of these open questions.
28. For a description of these practices, see infra Part II.G.
29. For a discussion of these suggestions, see infra Part III.B.
30. See infra note 337 and accompanying text.
31. For a discussion of these suggestions, see infra Part III.C.
32. This Article does not answer why civil rights doctrine relies on this assumption. One possible explanation is that few states had indemnification statutes in 1961, when the Supreme Court made clear in Monroe v. Pape, 365 U.S. 167, 192 (1961), that individuals could sue government officials under § 1983
33. John P. Taddei, Note, Beyond Absolute Immunity: Alternative Protections for Prosecutors Against Ultimate Liability for § 1983 Suits, 106 Nw. U. L. Rev. 1883, 1914-15 (2012) (describing the increasing number of indemnification statutes since 1976)
34. Fewer indemnification statutes does not necessarily mean, however, that indemnification was less frequent during this period-governments may have indemnified their officers as a matter of local policy or custom. There is, in fact, a long history of indemnification of government actors
35. See infra note 266 (describing a study by James Pfander and Jonathan Hunt examining indemnification of federal agents in the late-18th and early- to mid-19th centuries).
36. See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 727 (1999) (Scalia, J., concurring) ("[Section 1983] is designed to provide compensation for injuries arising from the violation of legal duties, and thereby, of course, to deter future violations." (citation omitted))
37. City of Riverside v. Rivera, 477 U.S. 561, 575 (1986) ("[T]he damages a plaintiff recovers contributes significantly to the deterrence of civil rights violations in the future.")
38. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) ("Deterrence operates through the mechanism of damages that are compensatory.")
39. Smith v. Wade, 461 U.S. 30, 50 (1983) ("[W]e assume, and hope, that most officials are guided primarily by the underlying standards of federal substantive law- both out of devotion to duty, and in the interest of avoiding liability for compensatory damages.").
40. Forrester v. White, 484 U.S. 219, 223 (1988).
41. Scheuer v. Rhodes, 416 U.S. 232, 245 (1974) (quoting Pierson v. Ray, 386 U.S. 547, 555 (1967))
42. Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).
43. Scheuer, 416 U.S. at 247-48.
44. See Harlow, 457 U.S. at 817 ("Judicial inquiry into subjective motivation may entail broad-ranging discovery and the deposing of numerous persons, including an official's professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.").
45. Wilson v. Layne, 526 U.S. 603, 617 (1999)
46. See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (finding the application of a law to similar facts is not required for a law to be "clearly established" when Supreme Court precedent "gave respondents fair warning that their conduct violated the Constitution")
47. Charles R. Wilson, "Location, Location, Location": Recent Developments in the Qualified Immunity Defense, 57 N.Y.U. Ann. Surv. Am. L. 445, 447 (2000).
48. The Court, in Saucier v. Katz, required judges to decide whether an officer's conduct was unconstitutional before deciding whether the unconstitutionality of his conduct was clearly established. This was, the Court explained, "the process for the law's elaboration from case to case." 533 U.S. 194, 201 (2001). Eight years later, the Court held that this two- step rule was not mandatory
49. Pearson v. Callahan, 555 U.S. 223 (2009). Now, it is unclear under what circumstances judges should decide the constitutional question first. See, e.g., Michael T. Kirkpatrick & Joshua Matz, Avoiding Permanent Limbo: Qualified Immunity and the Elaboration of Constitutional Rights from Saucier to Camreta (and Beyond), 80 Fordham L. Rev. 643, 669-76 (2011) (describing the confusion in qualified immunity doctrine post-Pearson).
50. John C. Jeffries Jr., The Liability Rule for Constitutional Torts, 99 Va. L. Rev. 207, 256 (2013) ("It makes sense to assess the reasonableness of constitutional error in light of clearly established law. But it does not make sense to bar liability for conduct that is both unconstitutional and unreasonable, simply because it has not specifically been declared so in a prior decision.").
51. Alan K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 3 (1997) (arguing that the Supreme Court has a "paradoxical approach to crafting qualified immunity law, which simultaneously encourages resolution of the defense on summary judgment and shapes the doctrine to ensure an almost inevitable factual inquiry that precludes pretrial termination of civil rights claims")
52. Diana Hassel, Living a Lie: The Cost of Qualified Immunity, 64 Mo. L. Rev. 123, 155 (1999) ("[Qualified immunity] is supposed to protect government actors not only from liability but also from entanglement with litigation. The promise is often not kept because the qualified immunity defense presents a combination of fact and law questions that cannot be quickly disposed of prior to trial.").
53. Forrester v. White, 484 U.S. 219, 224 (1988) (internal quotation marks omitted).
54. The Supreme Court has offered no empirical evidence to support its assertions about the effects of the threat of liability on officers. In Anderson, Forrester, Harlow, Hope, Del Monte Dunes, Pearson, Rivera, Scheuer, Smith, Stachura, and Wilson, discussed earlier and below in note 42, the Court cites other Supreme Court decisions, opinions from other courts, treatises on torts and damages, and law review articles in support of the notion that lawsuits deter officers-or makes the assertion without citation to a supporting source. None of the cited sources are empirical studies or cite empirical studies that support the Court's assumptions about the effects of lawsuits on officers' behavior.
55. Anderson v. Creighton, 483 U.S. 635, 641-42 & 642 n.3 (1987) (rejecting the plaintiffs' argument that widespread indemnification made qualified immunity unnecessary in part because the plaintiffs "do not and could not reasonably contend that the programs to which they refer make reimbursements sufficiently certain and generally available to justify reconsideration of the balance struck in Harlow and subsequent cases").
56. For a discussion of the nonfinancial effects of being named in a lawsuit, see infra notes 267-82 and accompanying text.
57. Jeffries, supra note 38, at 250.
58. For arguments that widespread indemnification-if empirically proven-would limit the justification for qualified immunity doctrine, see, e.g., Barbara E. Armacost, Qualified Immunity: Ignorance Excused, 51 Vand. L. Rev. 583, 587 (1998) ("[G]iven indemnification and absent some systemic bias, incentives might be balanced such that officials will, in fact, consider all the societal costs and benefits of their actions. If so, governmental liability would present little or no risk of over-deterrence, making qualified immunity unnecessary." (citations omitted))
59. Fallon, supra note 16, at 497 ("[I]t might be desirable to reconsider current doctrines that largely shield governments from direct liability for their officials' wrongs, especially if empirical studies were to establish that government employers routinely indemnify their officials anyway.").
60. See Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) ("[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.").
61. Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 430 (1997) (Breyer, J., dissenting).
62. See Achtenberg, supra note 6, at 2187-91 (describing routes to municipal liability under the Monell doctrine).
63. Pembaur v. City of Cincinnati, 475 U.S. 469, 486 (1986)
64. As just one example of the complexity of Monell doctrine, a municipal policy can be established when an official has exercised "policymaking authority" but not when the official has exercised "delegated discretionary policy-implementing authority." Brown, 520 U.S. at 434 (Breyer, J., dissenting) (emphasis omitted) (citing St. Louis v. Praprotnik, 485 U.S. 112, 126-27 (1988) (plurality opinion)).
65. Achtenberg, supra note 6, at 2191.
66. See, e.g., City of Okla. City v. Tuttle, 471 U.S. 808, 835-42 (1985) (Stevens, J., dissenting) (arguing that legislators would have assumed the applicability of the common law tort doctrine of respondeat superior, barring specific provisions to the contrary)
67. Achtenberg, supra note 6, at 2196-212 (explaining why the historical arguments against municipal respondeat superior are unfounded).
68. Catherine Fisk & Erwin Chemerinsky, Civil Rights Without Remedies: Vicarious Liability Under Title VII, Section 1983, and Title IX, 7 Wm. & Mary Bill Rts. J. 755, 796 (1999) (arguing that respondeat superior liability for municipalities would simplify the law, impose costs on deeper-pocketed municipalities, and create incentives for municipalities to prevent future harms).
69. Brown, 520 U.S. at 436 (Breyer, J., dissenting).
70. Smith v. Wade, 461 U.S. 30, 56 (1983).
71. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (holding that municipalities are immune from punitive damages in § 1983 cases)
72. The majority of states have also restricted or prohibited punitive damages awards against government entities in all cases. See Megan K. Bannigan, Judgment Day for Public Entity Punitive Damages? Reexamining the Law and Policy of Awarding Punitive Damages Against New Jersey Public Entities, 38 Rutgers L.J. 191, 245-46 (2006) ("The federal government and at least thirty-five states, as well as the District of Columbia, have enacted statutes that completely bar or significantly limit the possibility of recovering punitive damages against public entities.")
73. Jack M. Sabatino, Privatization and Punitives: Should Government Contractors Share the Sovereign's Immunities from Exemplary Damages?, 58 Ohio St. L.J. 175, 217 (1997) ("At least thirty-seven states and the District of Columbia have statutes fully or partially immunizing public entities from punitive damages.").
74. See City of Newport, 453 U.S. at 263 ("[M]unicipal immunity from punitive damages was well established at common law by 1871.").
75. Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 473 (2004) ("Individual officials, however, almost never reap the financial consequences of § 1983 suits that are brought against them because the government handles their legal defense and indemnifies them for any damages assessed against them.")
76. Richard Emery & Ilann Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28 Fordham Urb. L.J. 587, 590 (2000) ("[P]olice officers almost never pay anything out of their own pockets to settle civil lawsuits. Nor do they pay for judgments rendered after jury verdicts for plaintiffs.")
77. Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345, 353 (2000) (describing indemnification as "near-universal")
78. Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 Notre Dame L. Rev. 1011, 1019 (2000) (writing that indemnification is "generally thought to be widespread," though suggesting that it is not universal)
79. Miller & Wright, supra note 15, at 782 ("Municipalities indemnify officers in many cases.")
80. Martin A. Schwartz, Should Juries Be Informed That Municipality Will Indemnify Officer's § 1983 Liability for Constitutional Wrongdoing?, 86 Iowa L. Rev. 1209, 1217 (2001) ("States and municipalities often indemnify officers found personally liable for compensatory damages under § 1983.")
81. I have relied on this assumption as well. See Schwartz, supra note 18, at 1032 ("Even when plaintiffs win, some believe that judgments and settlements will not reliably deter because officers are regularly indemnified.").
82. Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609, 1630 (2012).
83. Schuck, supra note 13, at 85
84. Myriam E. Gilles, In Defense of Making Government Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 Ga. L. Rev. 841, 854 (2001) ("No police officer wants to be sued, particularly where there is no absolute guarantee that his municipal employer will pay for his defense and indemnify him for damages.")
85. Harold S. Lewis Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. Pa. L. Rev. 755, 786 (1992) ("[T]he practice of indemnification, although widespread, [is] equally uncertain and uneven. Some governments [will] not indemnify at all, and others only for conduct comporting with varying definitions of scope of authority.")
86. William C. Mathes & Robert T. Jones, Toward a "Scope of Official Duty" Immunity for Police Officers in Damage Actions, 53 Geo. L.J. 889, 912 (1965) ("[I]t appears that the indemnity practice is so irregular that its function as a 'conduit to governmental liability' is fortuitous at best.")
87. Louis L. Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv. L. Rev. 209, 216-17 (1963).
88. Richard Frankel, Regulating Privatized Government Through § 1983, 76 U. Chi. L. Rev. 1449, 1455-56 (2009) (observing that officers are not certain to be indemnified because "indemnification clauses often do not cover bad faith behavior" and "exclude intentional, reckless, or malicious conduct")
89. Myriam E. Gilles, Breaking the Code of Silence: Rediscovering "Custom" in Section 1983 Municipal Liability, 80 B.U. L. Rev. 17, 30-31 (2000) (observing that indemnification provisions are "wrought with uncertainty and difficulties" and "invariably afford the municipality the unilateral option of disclaiming coverage in broad categories of cases")
90. Meltzer, supra note 72, at 1019-20 (arguing that government employees are not always indemnified because "employees or agencies may (advertently or otherwise) be excluded; indemnification may be permissive rather than mandatory (though admittedly a routine practice of permissive indemnification may blunt any distinction)
91. Some states impose monetary limits on indemnification; and many indemnification provisions exclude conduct that is criminal, egregious, willful, or the like" (citations omitted)).
92. Schuck, supra note 13, at 86-87.
93. Howard Friedman, To Protect and Serve?, 47 Trial 14, 16 (Dec. 2011) ("[Indemnification] is unlikely where the officer was found guilty of criminal conduct against a plaintiff. Many insurance policies and state statues [sic] prohibit indemnification for criminal conduct. Similarly, if a department terminates an officer for his or her actions toward a plaintiff, the department may refuse indemnification.")
94. Jeffries, supra note 12, at 50 (hypothesizing that, although state officers are usually indemnified, those "who become targets of criminal prosecution are unlikely to receive financial subvention for civil liability")
95. Barry C. Scheck, Criminal Prosecution and Section 1983, 16 Touro L. Rev. 895, 902-03 (2000) ("You can almost certainly be assured indemnification will not occur in most of these instances where a police officer is convicted. If there is an acquittal, there may be administrative sanctions against the officer, but indemnification is unlikely.").
96. Rosalie Berger Levinson, Who Will Supervise the Supervisors? Establishing Liability for Failure to Train, Supervise, or Discipline Subordinates in a Post-Iqbal/Connick World, 47 Harv. C.R.-C.L. L. Rev. 273, 276 (2012).
97. Fisk & Chemerinsky, supra note 56, at 796.
98. See supra notes 11, 69-70 and accompanying text (describing other studies).
99. See Miller & Wright, supra note 15, at 775 ("[M]any civil claims against police are resolved either before a case is filed, or through secret settlements and judgments sealed by courts. Police departments, cities and counties are settling strong cases, and perhaps even less strong cases, but they are requiring (and probably paying for) sealed agreements.").
100. For lists of the 50 largest police departments and 50 largest law enforcement agencies, see Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies (CSLLEA), Nat'l Archive Criminal Justice Data (2008), http://www.icpsr.umich.edu/icpsrweb/NACJD/studies/27681 (download "Delimited" and refer to the variable Q6_TOT for total number of sworn law enforcement officers) [hereinafter BJS Law Enforcement Census Data]
101. Brian A. Reaves, Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2008, at 14, 17 (2011) [hereinafter BJS Law Enforcement Census Report], available at http://bjs.gov/content/pub/pdf/csllea08.pdf
102. Although all requests sought this information, the precise language of the requests was modified in some instances to respond to jurisdictions' questions or to comply with jurisdictions' public records provisions.
103. I eliminated from jurisdictions' responses those cases that were still pending as of December 31, 2011. If a jury had awarded damages but the case was on appeal-or, in one case, the indemnification decision was still being litigated-I excluded it from the data set.
104. Those twelve departments were: California Highway Patrol, New York State Police, Texas Department of Public Safety, Baltimore Police, Las Vegas Metro Police, Massachusetts State Police, Illinois State Police, North Carolina State Highway Patrol, Michigan State Police, Broward County Sheriff, Florida Highway Patrol, and Kansas City Police. Four additional departments-the Charlotte-Mecklenberg Police Department, Chicago Police Department, Pennsylvania State Police Department, and Miami-Dade Police Department-had information in their own records about the amount paid in lawsuits, and one-the Boston Police Department-had information about indemnification decisions. Note that eight of the twelve agencies with the most complete information were state law enforcement agencies, and just three of the eleven large state law enforcement agencies in my study did not possess information about litigation costs and indemnification decisions. Note also that the Riverside Sheriff provided me with responsive information, but made clear that the Sheriff was not the custodian of the records; the Sheriff had received the information from the County's Risk Management Division. Accordingly, I do not include Riverside in this list.
105. Appendix A has a list of responsive jurisdictions; Appendix G catalogues responses from the jurisdictions that did not have information about indemnification decisions and/or settlements and judgments during the study period; and Appendices I and J set out the data sources for responsive and nonresponsive larger jurisdictions, respectively.
106. The vast majority of law enforcement agencies across the country are small. Just eighty-three of the 17,985 law enforcement agencies have 1000 or more officers. BJS Law Enforcement Census Report, supra note 82, at 2.
107. Appendix E has a list of responsive small and mid-sized jurisdictions, and Appendix K sets out data sources for both responsive and nonresponsive small and mid-sized jurisdictions.
108. BJS Law Enforcement Census Data, supra note 82 (providing the sizes of law enforcement agencies).
109. Responsive jurisdictions are located in the West (including Alaska, California, Colorado, Hawaii, Idaho, Montana, Nevada, Utah, and Washington)
110. The Midwest (including Illinois, Indiana, Kansas, Michigan, Missouri, Nebraska, Ohio, and Wisconsin)
111. The Southwest (including Arizona, New Mexico, Oklahoma, and Texas)
112. The Southeast (including Alabama, Florida, Georgia, Kentucky, and North Carolina)
113. The Northeast (including New Hampshire, New Jersey, New York, Maryland, Massachusetts, and Pennsylvania).
114. There are, for example, reliably "blue" states (California, Illinois, Maryland, New York, and Washington); reliably "red" states (Georgia, Texas, and Oklahoma); and "purple" states (Florida and North Carolina)
115. The study also includes some of the most liberal and conservative cities in the country. See Bay Area Center for Voting Research, The Most Conservative and Liberal Cities in the United States 8, 10 (2005) (reporting that the twenty-five most liberal cities in the United States include San Francisco, Seattle, New York, and Boston, and that the twenty-five most conservative cities in the United States include Oklahoma City and City of Orange, California, which is located in a responsive jurisdiction-Orange County).
116. One of the sixteen sheriff's departments-Oldham County, Kentucky-appears not to provide correctional services. See OCSO Responsibilities, Oldham County Sheriff's Office, http://www.oldhamsheriff.com/?page_id=26 (last visited Apr. 29, 2014) (describing the sheriff's office's responsibilities).
117. Ohio Rev. Code Ann. § 2744.07 (West 2006) ("[A] political subdivision shall indemnify an employee in the amount of any judgment, other than for punitive or exemplary damages, for damages caused by an act or omission in connection with a governmental or proprietary function, if the employee was acting in good faith and within the scope of employment or official responsibilities.")
118. Phx., Ariz., City Code § 42-16 (2014), available at http://www.codepublishing.com/az/phoenix/ (search "42-16" and click on the "42-16 Representation and indemnification of the City, City employees, covered corporations, covered City entities and other persons, corporations or entities" hyperlink) ("[The City] shall provide legal defense and indemnification for any covered individual subject to a liability claim where a reasonable and good faith argument can be made that the civil liability of such individual arises from acts or omissions within the course and scope of the individual's employment with the City.")
119. Dall., Tex., City Ordinance § 31A-5 (2013), available at http://www.dallascityhall.com/html/codes.html (search for "31A"; then follow "Chapter 31A Officers and Employees" hyperlink; then follow "Sec. 31A-5. Coverage" hyperlink) (providing a liability plan for city officers and employees under which "[t]he city shall indemnify and defend [an individual] against a loss arising out of any claim, suit, or judgment resulting from an act or omission of the plan member during the discharge of his duties and within the scope of his office, employment, or assigned volunteer work with the city").
120. Mo. Rev. Stat. § 105.711 (2000) (providing funds to pay any claim or judgment against "[a]ny officer or employee of the state of Missouri or any agency of the state upon conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the state")
121. Austin City Council Res. 870409-02 (Austin 1987) (authorizing indemnification of city officials and employees where the individual "shall become legally obligated to pay by reason of the errors, omissions, negligent acts or violations of legal rights under color of law [only where] [t]he damages assessed [are] based on an act in the course and scope of [the individual's] position or employment for the City," but reserving "the right to refuse such indemnification depending on the factual circumstances from which damages have arisen").
122. Telephone Interview with Laura Gordon, Deputy City Attorney, City of El Paso (June 19, 2012) (describing city practice of providing all officers with a lawyer but reporting that "in no case do we indemnify").
123. Kristen Denius, Senior Assistant City Attorney, Atlanta City Attorney's Office, to Brian Cardile, Student, UCLA School of Law (Feb. 1, 2013, 13:20 PST) (on file with the New York University Law Review) (reporting that the city does not have a written indemnification policy, but "make[s] a case-by-case determination about whether to represent individual [defendants] who are named in lawsuits")
124. Telephone Interview with Laura Gordon, supra note 95 (reporting that El Paso has no formal indemnification policy, but does not indemnify its officers as a matter of practice)
125. E-mail from Bob Sanguinetti, Div. of Law Records Custodian, N.J. State Police, to author (Mar. 6, 2013, 13:08 PST) (on file with the New York University Law Review) ("The Division of Law has no written indemnification policy and relies on N.J.S.A. Title 59.")
126. Letter from Jamar B. Herry, Assoc. Cnty. Attorney, Prince George's Cnty. Gov't Office of Law, to author (Sept. 12, 2012) (on file with the New York University Law Review) (providing a section of the "Prince George's County's Risk Management Committee Policy and Procedures" in response to a request for the county's indemnification policy).
127. Compare infra note 149 (describing California's statute, which allows indemnification of punitive damages), with infra notes 153-56 (describing statutes and policies in effect in Prince George's County, Oklahoma City, Las Vegas, and New York City that prohibit indemnification of punitive damages expressly or by implication).
128. Dall., Tex., City Ordinance § 31A-5 (2013), available at http://www.dallascityhall.com/html/codes.html (search for "31A," then follow "Chapter 31A Officers and Employees" hyperlink, then follow "Sec. 31A-5. Coverage" hyperlink) (conditioning indemnification on defendant's cooperation with the lawsuit's defense)
129. Telephone Interview with Lisa Freitag, Rules Coordinator, Legal Office, Ill. State Police (July 12, 2012) (on file with the New York University Law Review) (reporting that the Illinois Attorney General reviews the allegations in the complaint and, at that time, decides whether to provide representation and indemnification)
130. Telephone Interview with Mia Obciana, Deputy Corp. Counsel, City of Honolulu (Dec. 4, 2012) (on file with the New York University Law Review) (reporting that if the Police Commission decides the officer was acting within the course and scope of his employment after receiving the complaint, the officer will receive representation and indemnification);
131. Infra note 221 and accompanying text (describing New York City's practice of waiting until the conclusion of a case to decide whether to indemnify).
132. Phx., Ariz., City Code § 42-16 (2014), available at http://www.codepublishing.com/az/phoenix/ (authorizing the city attorney to make indemnification decisions)
133. Supra note 98 (noting that the Illinois Attorney General makes indemnification decisions for the Illinois State Police and the Honolulu Police Commission makes indemnification decisions for the Honolulu Police Department).
134. BJS Law Enforcement Census Data, supra note 82 (providing the number of sworn law enforcement personnel nationwide and by agency)
135. Infra Appendix A (listing responsive large jurisdictions)
136. Infra Appendix E (listing responsive small and mid-sized jurisdictions).
137. I did not take these same steps for the small and mid-sized departments I queried because my primary goal regarding these smaller departments was to confirm that their indemnification decisions were similar to those in larger departments, and because several of the smaller departments did not provide information about payouts in their jurisdictions.
138. Appendix I describes the types of information provided by each of the forty-four large responsive jurisdictions.
139. See infra notes 129-30 and accompanying text (describing findings of virtually universal indemnification for non-civil rights claims)
140. Appendix B (providing indemnification statistics for the twenty-eight larger responsive jurisdictions that provided information about non-civil rights claims).
141. I removed two cases that involved off-duty conduct unrelated to law enforcement activities
142. See Owens v. Feigin, 394 N.J. Super. Ct. App. Div. 85, 87 (2007) (reciting allegations in a Notice of Tort Claim alleging a teenager died at the home of his friend, whose father was a state trooper)
143. Philip Messing, Bar Bat Shooter Was Off-Duty Cop, N.Y. Post, Oct. 10, 2002, at 2 (describing a dispute between Derick Bonner and Earl Rozier, an off-duty New York City police officer, at a nightclub, which presumably underlies the case of Bonner v. Rozier)
144. I also removed a case in which an officer was sued for conduct while assigned to another law enforcement agency
145. See Telephone Interview with Lisa Freitag, supra note 98. I kept five cases in the data set that involve off-duty conduct, however, because off-duty conduct can still be the basis for a § 1983 claim if the officer "purport[s] to exercise the authority" of a law enforcement officer by identifying him or herself as such or displaying a badge
146. Griffin v. Maryland, 378 U.S. 130, 135 (1964). For example, Ferreri v. Cleveland involved a shooting by an off-duty Cleveland police officer who was serving as a security guard in an apartment complex at the time
147. Although the officer was off-duty, he identified himself as a police officer before shooting the victim. Defandant's Memorandum in Support of Summary Judgment 2-3, Ferreri v. City of Cleveland, No. 09-CV-00621, at *3 (D. Ohio Oct. 23, 2009)
148. In another case, an off-duty officer assaulted the plaintiff and then provided false information that led to plaintiff's arrest. McNamara v. City of New York, No. 06 Civ. 5585(LTS)(FM), 2009 WL 735135, at *1-2 (S.D.N.Y. Mar. 20, 2009)
149. The court dismissed all but one of plaintiff's constitutional claims against the officer on the ground that he was not acting under color of state law, but did not dismiss a false arrest claim based on the off-duty officer's statements to the police that led to the plaintiff's arrest
150. Lawrence Goodman & John Marzulli, Cop Eyed in Kinky Calls, N.Y. Daily News, Oct. 1, 1997, at 51, available at http://www.nydailynews.com/archives/news/eyed-kinky-calls-article-1.782234 (reporting that a police officer-charged with endangering the welfare of a child-contacted the minor through information filed in a complaint at the officer's precinct)
151. If You Dare Complain About Police Abuse: The Record of New York's Civilian Complaint Review Board, Revolution (Nov. 15, 1998), http://www.revcom.us/a/v20/980-89/982/ccrb.htm (discussing the facts of Baird)
152. Complaint at 3, Oliveras v. City of New York, No. 105193/08 (S.D.N.Y. Oct. 14, 2005)
153. Telephone Interview by Brian Cardile with Plaintiff's Attorney in Oliveras (Feb. 8, 2013) (describing the facts of the case). In an abundance of caution, I have kept all five cases in the data set. See Appendix H for additional detail about these cases
154. These ten jurisdictions are New York State Police, New Jersey State Police, Las Vegas Metro Police, Riverside County Sheriff, Illinois State Police, San Antonio Police, San Bernardino Sheriff, Cleveland Police, Florida Highway Patrol, and Kansas City Police.
155. See Appendix C, which provides relevant data from these nineteen jurisdictions.
156. These eleven jurisdictions include the ten jurisdictions listed supra note 105 and the California Highway Patrol.
157. Illinois courts have held that police conduct is within the course and scope of employment so long as the "relevant acts are shown to be a natural part of or incident to the service of employment," and the defendants were "not acting [solely] as private individuals." Coleman v. Smith, 814 F.2d 1142, 1149-50 (7th Cir. 1987). Acts found to have been within the course and scope of police officers' employment in Illinois include: falsely arresting a plaintiff to "hamper an investigation into police corruption"; a "severe post arrest beating"; "framing [a] plaintiff for three burglaries"; and "wrongful shooting of the plaintiff." Wilson v. Chicago, 900 F. Supp. 1015, 1029-30 (N.D. Ill. 1995).
158. See, e.g., infra notes 212-20 and accompanying text (describing legal challenges to Los Angeles County's decisions to deny indemnification to deputies in two cases).
159. Mark Iris, Illegal Searches in Chicago: The Outcomes of 42 U.S.C. § 1983 Litigation, 32 St. Louis U. Pub. L. Rev. 123, 125-26 (2012) (reporting that the City of Chicago's list of lawsuits filed against its officers in federal court in 2009, produced in response to a public records request, "did not include approximately forty cases" found on Westlaw, Bloomberg, and PACER-approximately 8.7% of the total cases filed in federal court against Chicago police officers in 2009).
160. For example, Prince George's County, Las Vegas, and San Bernardino County did not disclose punitive damages judgments in cases found on Westlaw-presumably because the cases settled post judgment and so there was, technically, no punitive damages judgment imposed. See infra Part II.D.2 for a discussion of the resolutions of these cases.
161. See, e.g., supra note 104 (describing the removal of cases in which officers were sued for off-duty conduct unrelated to their law enforcement responsibilities). Additionally, the list of police misconduct cases produced by New York City includes at least sixteen cases that were improperly included in the data set
162. See infra Appendix I (describing the sources for New York City's data). I have removed these cases from my calculations, but there may well be additional non-civil rights cases in the figures provided by New York City and other jurisdictions.
163. The nineteen large departments that reported they did not keep track of indemnification information but responded based on institutional memory are: Riverside; Illinois State Police; San Antonio; Milwaukee; San Francisco; Columbus; Charlotte Mecklenburg; Broward County; Albuquerque; Miami; Jacksonville; Cleveland; Florida Highway Patrol; Michigan State Police; Atlanta; Prince George's County; Denver; El Paso; and Tampa. Twenty-four departments responded to my request for indemnification information without specifying whether their responses were based on records or institutional memory. I learned about New York City's indemnification decisions in federal court cases by reviewing individual dockets and settlement agreements, and by consulting with plaintiffs' attorneys. See Appendix I (describing data collection for New York City on the indemnification issue)
164. For the twenty-six large jurisdictions that did not keep track of indemnification decisions and would not respond based on institutional memory or review of relevant records, see Appendix G (listing nonresponsive large jurisdictions) and Appendix J (describing my correspondence with nonresponsive jurisdictions).
165. One jurisdiction reported that one officer was not provided representation by the city during the study period. The City of Austin reported paying $2500 to resolve claims against it in the case, but "do[es] not know what happened to the claims against the individual officer." E-mail from Meghan Riley, Div. Chief, Litig., City of Austin, Tex., to author (Mar. 14, 2014, 09:54 PDT) (on file with the New York University Law Review)
166. Calls to plaintiffs' counsel and the defendant officer's counsel went unreturned. Because I have no evidence indicating that this officer contributed to a settlement in this case, I have not included it in my calculations.
167. See infra Part II.F and Appendix H for further description of these cases.
168. See Appendix A, which describes the number of civil rights cases resulting in a payment to the plaintiff during the study period. As described in Part II.A and detailed in Appendix I, some of these numbers are estimations based on incomplete data provided by the jurisdictions.
169. If officers contributed to thirty-seven of these cases, they would have contributed to.401% of the cases. If officers contributed to thirty-nine of these cases, they would have contributed to.423% of these cases. The average is.412%.
170. The $20,000 difference depends on whether the Jacksonville Sheriff's deputy was denied indemnification during the study period and paid a total of $20,000-the maximum in the range remembered by the Chief Deputy Counsel for the City of Jacksonville. Depending on whether or not a deputy was required to pay this additional $20,000, law enforcement officers personally satisfied between.020% and.023% of the money paid to plaintiffs during this period. The Illinois State Police case, if within the study period, would potentially raise the amount further but would have minimal impact in percentage terms on these findings.
171. See Appendix A (providing summary statistics for larger jurisdictions).
172. See Appendix H (reporting $114,000 paid by New York City Police Department officers, out of a total of $3,086,505 paid to plaintiffs in those cases).
173. Compare Appendix A (reporting $348,274,595.81 paid by the New York City Police Department for civil rights settlements and judgments), with Appendix H (reporting $114,000 paid by officers).
174. See Appendix A (reporting payment of $38,734,282.27 to plaintiffs in civil rights judgments and settlements in Los Angeles); Appendix H (reporting $160,300 awarded to plaintiff in Taylor-Ewing v. City of Los Angeles, with $300 not indemnified by Los Angeles).
175. See Appendix H (reporting $37,000 paid by Cleveland officers and $92,000 paid to plaintiffs in two cases).
176. See Appendix A (reporting $3,474,253.87 in civil rights payments to all Cleveland plaintiffs); Appendix H (reporting $37,000 paid by Cleveland officers).
177. If thirty-five NYPD officers financially contributed to settlements and judgments during the six-year period of this study, then approximately 117 officers out of over 36,000 would contribute to settlements and judgments over a period of twenty years, which is the length of time officers typically serve before retirement or promotion
178. Joseph Berger, Still on Patrol After Two Decades, Valued but Rare, N.Y. Times, Dec. 14, 2011, at A30 (noting that in New York City, "[a]ccording to the Patrolmen's Benevolent Association, only 863 of the city's 34,805 officers still hold the rank of police officer after 20 years," with the vast majority of officers retiring or moving up the ranks).
179. If two Cleveland Police Department officers financially contributed to settlements and judgments during the six-year period of this study, then approximately 6.67 officers out of over 1600 would contribute to settlements and judgments over a twenty-year period.
180. None of the approximately 93,313 officers in the other thirty-nine larger agencies (excluding the New York City Police Department, Los Angeles Police Department, Cleveland Police Department, Illinois State Police Department, and Jacksonville Sheriff's Office) were required to contribute to a settlement or judgment during the study period. In comparison, "[f]or an average person in the U.S., the lifetime risk is roughly one in 3000 of being struck and one in 35,000 of being killed by lightning."
181. Amber E. Ritenour et al., Lightning Injury: A Review, 34 Burns 585, 586 (2008) (internal citation omitted).
182. Three of the three to five jurisdictions that required officers to contribute in § 1983 cases-Los Angeles, Cleveland, and the Illinois State Police-are included in this group of twenty-eight jurisdictions. Although New York City did not provide information about payouts in cases not alleging civil rights violations, my research revealed a few instances in which New York police officers were required to contribute to non-civil rights cases. See E mail from Andrea Fastenberg, Records Access Officer, N.Y.C. Law Dep't, to author (July 12, 2013, 10:43 PDT) (on file with the New York University Law Review) (reporting that an individual officer contributed $2500 to a $52,500 settlement in Kane v. City of New York)
183. Docket, Kane v. City of New York, No. 0402519/2006 (N.Y. Gen. Term Dec. 1, 2006) (on file with the New York University Law Review) (categorizing the case as a "motor vehicles" case)
184. Docket & Settlement Agreement, Kwiatkowski v. City of New York, No. 05-CV-01893 (E.D.N.Y., Dec. 16, 2006) (on file with the New York University Law Review) (employment discrimination case in which a defendant contributed $5000 to a $245,000 settlement). Although I do not know how often NYPD officers have contributed to non-civil rights cases during the study period, I have no reason to believe that their contributions to these types of cases are any more frequent than their contributions to § 1983 cases.
185. See Appendix B (setting out payments and indemnification decisions in these twenty-seven jurisdictions).
186. See Appendix E (setting out the amount paid by small and mid-sized jurisdictions); Appendix K (setting out data sources for responsive and nonresponsive small and mid sized jurisdictions).
187. N.Y. Pub. Off. Law § 17 (Consol. 2005) (providing that police officers employed in New York State are entitled to a legal defense for any claim arising under 42 U.S.C. § 1983)
188. Ohio Rev. Code Ann. § 2744.07 (West 2013) (providing that Ohio municipalities must represent officers for suits arising from acts taken in good faith and in the course and scope of their employment)
189. Las Vegas Police Policies and Procedures Manual, § 5/105.03 (2007) (on file with the New York University Law Review) (providing that Las Vegas police officers have a right to representation and indemnification unless the employee "fails to submit a timely request for defense," does not cooperate in the defense, acts outside the scope of his authority, or engages in wanton or malicious conduct).
190. E-mail from Joel Berger, Plaintiff's Attorney and Former N.Y.C. Law Dep't Exec., to author (Sept. 13, 2012, 18:57 PDT) (on file with the New York University Law Review) (explaining that the officers' union provides representation for those officers that New York City's Corporation Counsel declines to represent)
191. E-mail from Sean W. Farrell, Assoc. Chief Legal Counsel, Mass. State Police, to author (July 30, 2012, 14:24 PDT) (on file with the New York University Law Review) (reporting that when a police officer is individually sued under § 1983 "he or she is statutorily entitled to be indemnified pursuant to G.L.c. [sic] 258, sec. 9A for attorney's fees and judgments up to $1 million")
192. Telephone Interview with Lisa Freitag, supra note 98 (reporting that the Illinois Attorney General decides whether to provide representation and indemnification at the outset of the case and almost always provides both)
193. Telephone Interview with Laura Gordon, supra note 95 (reporting that the policy of El Paso, Texas is to provide all officers who have been sued with representation, but never to indemnify)
194. Telephone Interview with Howard Maltz, Chief Deputy Gen. Counsel, City of Jacksonville (July 10, 2012) (on file with the New York University Law Review) (reporting that officers are represented by the city or, if there is a conflict, by union lawyers to whom the city pays $60,000 per year to provide officers with representation)
195. Telephone Interview with Mia Obciana, supra note 98 (reporting that if the Honolulu Police Commission decides an officer was acting within the course and scope of his employment after receiving the complaint, the officer will receive representation and indemnification)
196. Telephone Interview with Nicole Taub, Office of Legal Advisor, Bos. Police Dep't (June 26, 2012) (on file with the New York University Law Review) (reporting that City Hall is responsible for providing legal counsel for Boston Police Department officers in civil rights cases).
197. For example, New Jersey and Honolulu decide whether to indemnify their officers at the beginning of the case-at the same time that they decide whether to provide the officers with representation
198. See Appendix I (describing indemnification decisions for the New Jersey State Police and the Honolulu Police Department)
199. In other jurisdictions, including New York City, indemnification decisions are not made until the conclusion of litigation
200. See infra note 221 and accompanying text (describing indemnification decisions regarding New York City Police Department officers).
201. For an example of a case in which the indemnification issue was hotly contested, see infra notes 203-08 and accompanying text (describing a case in which the Massachusetts State Police declined to indemnify an officer but the state ultimately satisfied the judgment against the officer).
202. Telephone Interview with Ursula Richardson, Assistant City Attorney, City of Tampa (July 31, 2012) (reporting that when Tampa settles cases it will ask that the individual officer be dismissed so that the settlement is with the city)
203. E-mail from Richard C. Smith, Litig. Div. Head, Mun. Counselor's Office, City of Okla. City (July 17, 2012, 05:58 PDT) (on file with the New York University Law Review) (describing Oklahoma City's practice of requiring that individual defendants be dismissed before the city will pay a judgment)
204. Telephone Interview with Nicole Taub, supra note 133 (reporting that, when a case is settled in Boston, the individual officer is generally dismissed from the case and the city will then satisfy the settlement).
205. Compare Telephone Interview with Sam Snoddy, Plaintiff's Attorney (July 12, 2013) (on file with the New York University Law Review) (reporting that many lawyers in El Paso, Texas, will not take police misconduct claims because federal district court judges and the Fifth Circuit are so hostile to the cases, that officers sued in state court are not going to be indemnified, and that the only cases worth taking are those in which the plaintiff has a clean background and in which there are outrageous facts), with Telephone Interview with Kim E. Richman, Plaintiff's Attorney (Mar. 11, 2013) (on file with the New York University Law Review) (reporting that police misconduct litigation in New York is a "volume practice" and that the City pays on average between $5000 and $15,000 for a night in jail depending on the circumstances of the case).
206. I am aware of one employment discrimination case from the responsive jurisdictions in which punitive damages were awarded
207. See E-mail from Kevin Gillen, Yellowstone Cnty. Attorney, Civil Div., to author (Nov. 14, 2013, 11:39 PST) (on file with the New York University Law Review) (reporting one $145,000 punitive damages judgment against three members of the Yellowstone County Sheriff's Office in favor of three employee plaintiffs who had brought employment discrimination and retaliation claims against their supervisors and employer)
208. See Appendix F (setting out the punitive damages awards against officers in civil rights cases in the eighty-one jurisdictions studied).
209. See infra Part II.D.2 (describing these practices in more detail).
210. See infra notes 197-202 and accompanying text (describing the case in which a Los Angeles Police Department officer was not indemnified for a $300 punitive damages judgment).
211. See supra notes 93-99 and accompanying text (describing variation in indemnification statutes and policies across jurisdictions in my study).
212. N.Y. Gen. Mun. Law § 50-k(3) (McKinney 2007)
213. See also supra note 97 and accompanying text (describing variations in indemnification statutes regarding punitive damages across jurisdictions in my study).
214. See supra notes 74-76 and accompanying text.
215. Telephone Interview with Laura Gordon, supra note 95.
216. Cal. Gov't Code § 825(b) (West 2012).
217. Note that, in some instances, instead of satisfying the punitive damages judgment directly, the case was settled after trial or appeal
218. See, e.g., E-mail from Kim Hunter, Gen. Counsel, Dep't of the Cal. Highway Patrol, to author (Apr. 22, 2013, 15:21 PDT) (on file with the New York University Law Review) (reporting that, after the court of appeals affirmed the $55,000 punitive damages judgment entered against two California Highway Patrol officers, the parties went into mediation and settled the case for $2 million-with the officers paying nothing).
219. N.M. Stat. Ann. § 41-4-4.C (2013) ("A governmental entity shall pay any award for punitive or exemplary damages awarded against a public employee under the substantive law of a jurisdiction other than New Mexico if the public employee was acting within the scope of his duty.").
220. For additional information about this case, see infra notes 181-86 and accompanying text.
221. See Letter from Jamar B. Herry, to author, supra note 96, at 2 (attaching Prince George's County risk management policy stating that "[a]ll payments and settlements for liability claims shall be limited to compensatory damages").
222. See Okla. Stat. tit. 51, § 162.D (2011) ("The state or a political subdivision shall not, under any circumstances, be responsible to pay or indemnify any employee for any punitive or exemplary damages rendered against the employee.").
223. Letter from Charlotte M. Bible, Assistant Gen. Counsel, Las Vegas Metro. Police Dep't, to author (Oct. 9, 2012) (on file with the New York University Law Review) (providing the Las Vegas Metropolitan Police Department's official indemnification policy).
224. N.Y. Gen. Mun. Law § 50-k(3) (McKinney 2007).
225. In Smith v. Wade, 461 U.S. 30, 51 (1983), the Supreme Court held that punitive damages could be awarded against a defendant in a § 1983 case if the plaintiff proved that the defendant acted with "reckless or callous disregard for the plaintiff's rights" or intentionally violated the law.
226. See Prince George's Cnty. v. Longtin, 988 A.2d 20, 26-27 (2010) (affirming a modified judgment of $50,000 in punitive damages); E-mail from Jamar B. Herry, Legal Advisor, Prince George's Cnty. Police Dep't, to author (May 9, 2013, 6:36 PDT) (on file with the New York University Law Review) ("Prince George's County did indemnify the officer in Prince George's County Maryland v. Longtin, 190 Md. App. 97 (2010).").
227. See Appendix F.
228. In three cases, the city directly satisfied the punitive damages judgments; in the other three cases, the parties vacated the punitive damages judgment as part of a post-trial settlement. The details of these cases are set out in Appendix I, in the source data for the New York City Police Department.
229. See supra note 77 and accompanying text (describing the hypothesis that officers terminated, disciplined, or criminally prosecuted will not be indemnified).
230. See, e.g., Appendix H (describing cases of nonindemnification, including several in which officers are known to have been disciplined or criminally punished)
231. see also infra notes 203-20 (describing cases in which the Massachusetts State Police and the Los Angeles Sheriff's Department have declined to indemnify officers who were criminally punished and disciplined or fired by their employers).
232. Christopher N. Osher, LaCabe Fires 3 Officers in Stomping of Teen: As Denver's Safety Manager Retires, He Is Assailed for the Dismissals by the President of the Police Union, Denver Post, July 1, 2010, at A1.
233. Three Denver Cops Fired for Excessive Force Against Hispanic Teen, Examiner.com (June 30, 2010), http://www.examiner.com/article/three-denver-cops-fired-for-excessive-force-against-hispanic-teen (reporting that Denver paid $885,000 to settle the lawsuit in late 2008).
234. E-mail from David V. Cooke, Assistant Dir. of Litig., Denver Dep't of Law, to author (Oct. 9, 2012, 19:54 PDT) (on file with the New York University Law Review) (stating that it is his understanding that officers were indemnified for all of the settlements and judgments paid between September 2008 and December 2011).
235. Shaila Dewan & Brenda Goodman, Prosecutors Say Corruption in Atlanta Police Department Is Widespread, N.Y. Times, Apr. 27, 2007, at A18.
236. Bill Rankin, Ex-Cops Get 5-10 Years for Drug Raid: Judge Agrees Atlanta Police Quotas Influenced Officers, Atlanta Journal-Constitution, Feb. 25, 2009, at C1.
237. Ernie Suggs, Firings End Botched Raid Case, Atlanta Journal-Constitution, June 10, 2010, at A1.
238. City of Atlanta and Kathryn Johnston's Family Settle Wrongful Death Lawsuit for $4.9 Million, 11 Alive (Aug. 17, 2010, 11:41 PM), http://www.11alive.com/news/local/story.aspx?storyid=150325.
239. See E-mail from Kristen Denius, Assistant City Attorney, City of Atlanta, to Brian Cardile, Student, UCLA School of Law (Feb. 1, 2013, 13:20 PST) (on file with the New York University Law Review) ("I am not aware of any circumstances in the period covered by this report in which individual officers contributed to any payment of claims or damage awards.")
240. E-mail from Kristen Denius, Assistant City Attorney, City of Atlanta, to author (Jan. 13, 2014, 08:40 PST) (on file with the New York University Law Review) (confirming that officers did not contribute to the Johnston settlement).
241. Seeley v. Chase, 443 F.3d 1290, 1292 (10th Cir. 2006).
242. Joline Gutierrez Krueger, Ex-APD Officer Gets 15 Years in Prison, Albuquerque Trib., Mar. 30, 2006, at A2.
243. Seeley, 443 F.3d at 1292 (describing the jury's verdict).
244. See Letter from Roberta Duran, Fiscal Officer, Legal Dep't Records Custodian, Office of the City Attorney, City of Albuquerque, to author, at 4 (July 2, 2012) (on file with the New York University Law Review) (appending spreadsheet of cases closed between 2001 and 2011 and their settlement or judgment amounts).
245. See Telephone Interview with Kathryn Levy, Deputy City Attorney, City of Albuquerque (June 13, 2013) (reporting that the applicable indemnification statute does not clearly obligate Albuquerque to indemnify for punitive damages but that they have considered each award on a case-by-case basis and have not had an instance in which they declined to indemnify a punitive damages award).
246. David Packman, The Problem with Prosecuting Police in Washington State, Cato Inst. (Feb. 27, 2011, 12:55 AM), http://www.policemisconduct.net/the-problem-with-prosecuting-police-in-washington-state/
247. Supra note 104 and Appendix H for a description of the details of these cases.
248. In two of these cases, Baird and Oliveras, the officers were also off duty
249. See Appendix H for additional details about these cases.
250. See McNamara v. City of New York, No. 06-CV-5585, 2009 WL 735135, at *7-8 (S.D.N.Y. Mar. 20, 2009) (dismissing all claims against New York City and other defendant-officers).
251. Thirty-five New York City Police Department officers were required to contribute to a total of thirty-four cases. Two officers contributed to settlements in two of those cases- Wells and Sellers-but one of the officers, who contributed to the settlement in Sellers, was also required to contribute to the settlement in Lipka. In the remaining three-to-five cases from the other two-to-four jurisdictions, only one officer was required to contribute per case.
252. Figure 1 does not include the two possibly relevant cases from Jacksonville and Illinois, as there is no definitive information about the amount contributed by officers in either case. In addition, although officers were "required to contribute" these amounts, I do not have proof that these contributions were ever made, and, in at least one case, I have proof that the officer did not satisfy the punitive damages judgment for which he was personally responsible
253. Infra notes 196-201.
254. Supra note 93 (describing the Ohio indemnification statute).
255. N.Y. Gen. Mun. Law § 50-k (McKinney 2013).
256. See E-mail from Joel Berger, Plaintiff's Attorney and Former N.Y.C. Law Dep't Exec., to author (Sept. 27, 2012, 16:16 PDT) (on file with the New York University Law Review) (noting that there have been some cases in which "the City didn't represent the officer," but "it settled on behalf of the City, and the officer whom it didn't represent had to kick in some nominal amount as part of the final settlement," and adding, "in my day [as a New York City Law Department executive from 1988-1996], the Comptroller's office (Holtzman, then Hevesi) occasionally would insist on such an arrangement as a precondition to approving the City's share of the settlement, the Law Department would resist, but in the end the Comptroller's office would prevail because the Law Department can't settle without the Comptroller's approval")
257. Telephone Interview with Brett Klein, Plaintiff's Attorney (July 16, 2013) (reporting that the current comptroller also pushes for contributions from officers against whom charges of misconduct have been substantiated).
258. Taylor-Ewing v. City of Los Angeles, No. 07-CV-05556, 2010 WL 6344200 (C.D. Cal. 2012).
259. See Telephone Interview with V. James DeSimone, Plaintiff's Attorney (Apr. 25, 2013) (describing DeSimone's failed efforts to get the city to pay the punitive damages award).
260. Defendant-Appellant's Brief at 7, Maimaron v. Commonwealth, 865 N.E.2d 1098 (Mass. May 3, 2006) (No. SJC-09728) (on file with the New York University Law Review).
261. See E-mail from Sean W. Farrell, Assoc. Chief Legal Counsel, Mass. State Police, to author (Aug. 26, 2013, 08:47 PDT) (on file with the New York University Law Review) (reporting that the case settled after the Massachusetts Supreme Court ruled that the Department "should have sought declaratory judgment before denying the indemnification request")
262. E-mail from Max D. Stern, Plaintiff's Attorney, to author (Aug. 25, 2013, 14:59 PDT) (on file with the New York University Law Review) (confirming that Oxner did not contribute to the settlement).
263. Tom Baker, Transforming Punishment Into Compensation: In the Shadow of Punitive Damages, 1998 Wis. L. Rev. 211, 222 ("The plaintiff's lawyer is not unassisted in constructing the case to target the best coverage or the deepest pocket. The uninsured (or underinsured) defendant helps out.").
264. See Telephone Interview with Captain Shaun Mathers, Risk Manager, Los Angeles Sheriff's Department (Apr. 23, 2013) (explaining that the Department was "indemnifying everyone" until a few years ago).
265. Robert Faturechi, Inmate Wins $405,000 in Jail Attack; A Federal Jury Finds He Was Pepper-Sprayed by Three L.A. County Sheriff's Deputies, L.A. Times, Sept. 10, 2010, at AA4 (describing the facts of the case); Verdict and Settlement Summary, Franco v. Gennaco, No. 09-cv-00893, 2010 WL 4079740 (C.D. Cal. 2010) (describing the jury's verdict).
266. Verdict and Settlement Summary, supra note 212.
267. Telephone Interview with Arnoldo Casillas, Plaintiff's Attorney (Apr. 23, 2013).
268. Docket in Chang v. Cnty. of Los Angeles, No. BC479858 (Cal. Super. Ct. May 13, 2013) (on file with the New York University Law Review).
269. Jimenez v. Franklin, 680 F.3d 1096, 1098 (9th Cir. 2012).
270. Jimenez v. Cnty. of Los Angeles, No. CV 12-5691-RGK, 2013 WL 2155222, at *2 (C.D. Cal. 2013) (noting that Gonzalez was incarcerated for sexually assaulting women in his squad car at the time of the jury verdict).
271. Jimenez v. Franklin, 680 F.3d at 1098.
272. Jimenez v. Cnty. of Los Angeles, No. CV 12-5691-RGK, 2013 WL 2155222, at *1.
273. Joel Berger, New York City Corporation Counsel's Viewpoint, 9 J. Suffolk Acad. L. 69, 74-75 (1994)
274. Ilann M. Maazel, Punitive Damages and Indemnification: What Should Juries Be Told?, N.Y. L.J., Mar. 20, 2012, at 3 ("Many municipalities, including the City of New York, take the litigation position that indemnification decisions are not made until after trial.").
275. Telephone Interview with Laura Gordon, supra note 95.
276. See supra Part I.A.2 (outlining the doctrine governing Monell claims).
277. Telephone Interview with Laura Gordon, supra note 95.
278. Telephone Interview with Steven T. Robles, Dir. of Risk Mgmt., Cnty. of San Bernardino (July 17, 2012).
279. See Defendant's Supplemental Response to Plaintiff's Second Set of Interrogatories at 5-6, Gyasi v. City of New York, No. 05-CV-9453 (S.D.N.Y. Nov. 27, 2006) (reporting that the City of New York indemnified every punitive and compensatory damages judgment entered against NYPD officers it represented between 1996 and 2006)
280. See also Appendix F (reporting indemnification of all punitive damages judgments entered between 2006 and 2011)
281. Appendix I (describing sources of data about punitive damages awards during study period, including punitive damages awards against two defendants the City did not represent).
282. Supra note 221 (describing New York City's practice of waiting until the close of litigation to decide whether to indemnify)
283. Infra notes 230-37 (describing several cases in which defense counsel argued that New York City might decide not to indemnify an officer after trial).
284. Letter from Joel Berger, Plaintiff's Attorney, in Gordon v. City of New York, to Judge Shira A. Scheindlin, (Jan. 27, 2009) (on file with the New York University Law Review) (seeking information about defendants' indemnification decisions from 2006 to 2009, and explaining defendants' practices that justify the disclosure of this information)
285. In a discovery conference in another case, Gyasi v. City of New York, Joel Berger sought discovery of the city's past indemnification decisions, arguing "in every case I have been involved in, and I have consulted with many colleagues in civil rights cases, the city always wants the jury to be told, Oh you can only award punitives against the officer individually, not the city." Pretrial Transcript at 4, Gyasi v. City of New York, No. 05-CV-09453 (S.D.N.Y. June 29, 2006).
286. Scherer v. City of New York, No. 03 Civ. 8445, 2007 WL 2710100, at *1 (S.D.N.Y. Sept. 7, 2007).
287. Prince George's Cnty. v. Longtin, 988 A.2d 20, 27-30 (Md. Ct. Spec. App. 2010)
288. E-mail from Jamar B. Herry, supra note 158.
289. Grassilli v. Barr, 48 Cal. Rptr. 3d 715, 720-26 (Ct. App. 2006).
290. E-mail from Kim Hunter, supra note 150 (describing the mediation and settlement).
291. For scholarship that engages with these questions, see Fallon, supra note 16, at 480 (describing his "Equilibration Thesis," in which "substantive rights, causes of action to enforce rights, rules of pleading and proof, and immunity doctrines all are flexible and potentially adjustable components of a package of rights and enforcement mechanisms that should be viewed, and assessed for desirability, as a whole").
292. Supra notes 134-37 and accompanying text (discussing this possibility).
293. Fallon, supra note 16, at 489 ("[I]f courts and other decisionmakers were deprived of official immunity as an equilibrating device, they would at least sometimes turn to other tools in an effort to reduce the overall social costs of packages of rights and surrounding doctrines.").
294. Hassel, supra note 39, at 136 n.65, 145 n.106 (1999) (studying published cases and finding that qualified immunity defenses were denied only about 20% of the time)
295. Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 Stan. L. Rev. 809, 843 (2010) (studying Bivens actions and finding that "the qualified immunity defense is of minimal importance in regulating Bivens, at least in filed cases").
296. Richardson v. McKnight, 521 U.S. 399, 408 (1997) (quoting Wyatt v. Cole, 504 U.S. 158, 167 (1992)).
297. See Appendix H (detailing cases where officers were required to contribute to judgments and settlements).
298. Supra note 45 and accompanying text (describing other scholars' similar arguments that evidence of widespread indemnification would undermine current justifications for qualified immunity).
299. Richardson, 521 U.S. at 411.
300. Owen v. City of Independence, 445 U.S. 622, 654 (1980) (internal quotation marks omitted) (quoting Scheuer v. Rhodes, 416 U.S. 232, 240 (1974)).
301. Richardson, 521 U.S. at 411.
302. Owen, 445 U.S. at 654.
303. David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. Pa. L. Rev. 23, 74 (1989) ("Indemnification protect[s] valid government interests and at the same time provide[s] for the vindication of constitutional rights through compensation of the victim of the constitutional tort.").
304. A recent study by James Pfander and Jonathan Hunt of the history of indemnification in the United States indicates that the early Republic also balanced interests in compensating plaintiffs who had been wronged and avoiding overdeterrence of government actors through indemnification. Pfander and Hunt found that, beginning in the late eighteenth century, federal agents who had been sued for wrongdoing began petitioning Congress for the adoption of private bills of indemnity and, by 1828, the practice of government indemnification was "settled and routine." James E. Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862, 1867-68 (2010). Indemnification through these private bills was relied upon to "strik[e] the right balance between the compensation of victims and the protection of officers who acted in good faith." Id. at 1925. Indemnification was the sole means of striking this balance: As Pfander and Hunt explain, "the courts-state and federal-did not take responsibility for adjusting the incentives of officers or for protecting them from the burdens of litigation and personal liability. These were matters for Congress to adjust through indemnification and other modes of calibrating official zeal."
305. Christine Eith & Matthew R. Durose, Bureau of Justice Statistics, U.S. Dep't of Justice, Contacts Between Police and the Public, 2008, at 1 (2011) (reporting that an estimated forty million people had contact with police in 2008)
306. Joanna C. Schwartz, What Police Learn from Lawsuits, 33 Cardozo L. Rev. 841, 863-64 (2012) (citing a Bureau of Justice statistics report in support of the conclusion that people who believe they have been mistreated by the police sue only approximately 1% of the time, and offering reasons why this might be the case).
307. Schwartz, supra note 18, at 1076-77 (describing evidence that police misconduct suits have limited negative effects on officers' employment).
308. Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 Colum. L. Rev. 247, 286 (1988).
309. Schwartz, supra note 18, at 1026-27 (observing that boundedly rational officers cannot engage in the rational cost-benefit analyses assumed by standard economic models of deterrence).
310. Supra notes 132-33 and accompanying text (describing the frequency with which law enforcement officers are provided with defense counsel free of charge).
311. Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1675 n.389 (2003) ("For correctional officers, probably the most significant consequence of being sued is the need to give explanations to would-be creditors." (citation omitted))
312. H. Allen Black, Note, Balance, Band-Aid, or Tourniquet: The Illusion of Qualified Immunity for Federal Officials, 32 Wm. & Mary L. Rev. 733, 752 (1991) (arguing that being named a defendant may "hamper defendants' efforts to obtain loans" and "keep defendants from disposing of certain real property").
313. Schwartz, supra note 18, at 1034 n.58 (describing concerns about the effects of lawsuits on officers' jobs). Note, however, that my previous study of the role of lawsuit information in law enforcement decisionmaking makes clear that police departments know little about the suits brought against their officers
314. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (observing that qualified immunity protects officers from the "harassment" and "distraction" of suit).
315. See Armacost, supra note 45, at 588 n.17 (observing that when indemnification decisions are made at the conclusion of the litigation, "officials face significant uncertainty about their individual situations").
316. See Anderson v. Creighton, 483 U.S. 635, 641 n.3 (1987) (raising the possibility that conscientious officials are concerned with imposing liability on their employers).
317. Brief for National Association of Police Organizations and National Law Enforcement Officers' Rights Center as Amicus Curiae Supporting Petitioner at 5, Saucier v. Katz, 533 U.S. 194 (2001) (No. 99-1977).
318. Jeffries, supra note 12, at 51 n.17.
319. Carol A. Archbold & Edward R. Maguire, Studying Civil Suits Against the Police: A Serendipitous Finding of Sample Selection Bias, 5 Police Q. 222, 226 (2002) (describing studies of the levels of "litigaphobia" experienced by police officers and chiefs).
320. Victor E. Kappeler, Critical Issues in Police Civil Liability 7 (4th ed. 2006) (citing several studies)
321. Arthur H. Garrison, Law Enforcement Civil Liability Under Federal Law and Attitudes on Civil Liability: A Survey of University, Municipal and State Police Officers, 18 Police Stud. Int'l Rev. Police Dev. 19, 26 (1995) (finding that 62% of a sample of fifty officers from state, municipal, and university law enforcement agencies in Pennsylvania believed that civil suits deter police officers, but 87% of state police officers surveyed, 95% of municipal police officers surveyed, and 100% of university police officers surveyed did not consider the threat of a lawsuit among their "top ten thoughts" when stopping a vehicle or engaging in a personal interaction)
322. Daniel E. Hall et al., Suing Cops and Corrections Officers: Officer Attitudes and Experiences About Civil Liability, 26 Policing: Int'l J. Police Strategies & Mgmt. 529, 545 (2003) (surveying sheriff's deputies, corrections officers, and municipal police officers in a southern state and concluding that "most public safety officers are not impacted on a day-to-day basis by the threat of civil liability")
323. Tom "Tad" Hughes, Police Officers and Civil Liability: "The Ties that Bind"?, 24 Policing: Int'l J. Police Strategies & Mgmt. 240, 253 (2001) (reporting that a survey of Cincinnati police officers revealed that most officers "think civil liability impedes effective law enforcement" but that most do not "consider liability concerns when stopping a citizen").
324. Kenneth J. Novak, Brad W. Smith & James Frank, Strange Bedfellows: Civil Liability and Aggressive Policing, 26 Policing: Int'l J. Police Strategies & Mgmt. 352, 360, 363 (2003) (surveying and observing Cincinnati police officers).
325. For a description of the justifications for qualified immunity doctrine, see supra Part I.A.1.
326. Malley v. Briggs, 475 U.S. 335, 341 (1986).
327. Qualified immunity could be justified on other grounds. One alternate justification would be to limit payments by governments (and, by implication, their taxpayers). See, e.g., Lawrence Rosenthal, A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings, 9 U. Pa. J. Const. L. 797, 856 (2007) (noting that widespread indemnification undermines "the stated justification for qualified immunity," but "[w]hen qualified immunity is viewed from the standpoint of a public employer-the party that bears the economic burden of liability-this doctrine has a compelling justification")
328. This Article does not attempt to guess whether the Supreme Court would adjust its justification for qualified immunity in this manner, nor does it assess the merits of such a justification were it offered.
329. Fisk & Chemerinsky, supra note 56, at 791 (describing municipal liability standards as a "doctrinal disarray involving literally thousands of decisions trying to define when cities can be held liable").
330. Supra notes 54-56 and accompanying text (describing some of these scholarly critiques).
331. "Monell doctrine" refers to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), which held that cities could be held directly liable (under limited circumstances) but not vicariously liable for § 1983 claims brought against their employees, and subsequent cases interpreting Monell's scope. For a more detailed description of the doctrine, see supra Part I.A.2.
332. For a discussion of the limitations of this approach, see infra notes 298-99 and accompanying text.
333. Infra notes 32-34 and accompanying text (describing the plaintiff's need to show a violation of "clearly established law" to defeat a defendant's motion to dismiss on qualified immunity grounds).
334. Gilles, supra note 74, at 861.
335. Jack M. Beermann, Municipal Responsibility for Constitutional Torts, 48 DePaul L. Rev. 627, 667 (1999) ("Indemnification is a poor substitute for vicarious liability because to a jury it may still appear that any damages may be paid out of the employee's own pocket.").
336. Supra note 136 and accompanying text (describing jurisdictions that enter settlements conditioned upon the individual officer being dismissed from the case).
337. Supra notes 145-48 and accompanying text (describing El Paso's policy of denying officers indemnification as a formal matter, but nevertheless paying settlements on officers' behalf)
338. Fisk & Chemerinsky, supra note 56, at 791 ("A clear and simple vicarious liability rule would be preferable to the current doctrinal disarray ").
339. Supra note 55 and accompanying text (describing the view that the language and legislative history of § 1983 is not inconsistent with respondeat superior liability).
340. Fisk & Chemerinsky, supra note 56, at 796 (advocating for vicarious liability in § 1983 cases to circumvent qualified immunity)
341. Askins v. Doe, 727 F.3d 248, 254 (2d Cir. 2013) (holding that the plaintiff can proceed on his Monell claim even if claims against individual defendants have been dismissed on qualified immunity grounds, and reasoning that qualified immunity protections have "no bearing on the liability of municipalities")
342. Mason v. Stock, 955 F. Supp. 1293, 1304 n.9 (D. Kan. 1997) ("[W]hen qualified immunity is predicated on the basis that the law is not clearly established, the corresponding claim against a municipality may proceed.")
343. Watson v. Sexton, 755 F. Supp. 583, 588 (S.D.N.Y. 1991)
344. See also, e.g., Szabla v. City of Brooklyn Park, 486 F.3d 385, 394 (8th Cir. 2007) (en banc) ("[T]he lack of clarity in the law precludes a finding that the municipality had an unconstitutional policy at all, because its policymakers cannot properly be said to have exhibited a policy of deliberate indifference to constitutional rights that were not clearly established.")
345. But see Askins, 727 F.3d at 254 (concluding that municipal liability claims must be allowed to proceed despite a finding that the law was not clearly established, because to do otherwise would "effectively extend the defense of qualified immunity to municipalities, contravening the Supreme Court's holding in Owen").
346. Supra Part III.A.1 (describing the effects of widespread indemnification on justifications for qualified immunity).
347. To the extent that state statutes prohibiting or restricting punitive damages awards against public entities in non-civil rights cases (described supra note 61) are based on the assumptions underlying City of Newport (discussed supra notes 61-65 and accompanying text), such statutes should also be reconsidered. These statutes may, however, have little practical effect in law enforcement litigation: I am aware of only one punitive damages award against individual officers in a non-civil rights case in the eighty-one jurisdictions in my study during the six-year study period. See supra note 138 (describing the non-civil rights case in which punitive damages were awarded).
348. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 268 (1981).
349. Schwartz, supra note 72, at 1220-21 (describing insuring punitive damages awards in private law and indemnifying punitive damages awards in § 1983 cases as against public policy)
350. Elliott M. Kroll & James M. Westerlind, Arent Fox LLP, Arent Fox LLP Survey of Damage Laws of the 50 States Including the District of Columbia and Puerto Rico (2012) (reporting that punitive damages awards are insurable in some states).
351. Supra notes 158-68 and accompanying text (describing these practices).
352. David G. Owen, A Punitive Damages Overview: Functions, Problems and Reform, 39 Vill. L. Rev. 363, 374-80 (1994) (describing the functions of punitive damages)
353. Joseph A. Seiner, Punitive Damages, Due Process, and Employment Discrimination, 97 Iowa L. Rev. 473, 485-86 (2012) (describing the deterrence, punishment, education, and compensation goals of punitive damages).
354. Cf. Larez v. Holcomb, 16 F.3d 1513, 1525 (9th Cir. 1994) (Pregerson, J., concurring in part and dissenting in part) (observing that juries might impose punitive damages against municipalities less frequently, knowing that taxpayers will be satisfying the judgments).
355. See, e.g., Ciraolo v. City of New York, 216 F.3d 236, 247 & n.9, 248 (2d Cir. 2000) (Calabresi, J., concurring) (arguing that punitive damages should be awarded against municipalities as a means of "remedying underdeterrence" and suggesting that extracompensatory damages against municipalities be paid into a "specific fund whose purpose, at least in theory, would be to attenuate the harm borne by those victims who did not receive compensatory damages")
356. Gilles, supra note 74, at 873 ("[T]he availability of punitive damages in Monell claims will place unconstitutional policies and customs squarely on the radar screens of responsible officials.").
357. For a discussion of the current effect of litigation costs on governments, see infra Part III.C.
358. But see supra Part III.A.3 for suggestions about ways to shift punitive damages doctrine in light of evidence of widespread indemnification.
359. I am not addressing the question of whether juries should be informed that officers are indemnified for compensatory damages awards, although this is also a subject of debate. See Schwartz, supra note 72, at 1212 ("Although it is a close question, the jury should know about indemnification of compensatory damages [in civil rights actions] so that it is not misled into believing that the officer will satisfy a monetary judgment out of personal finances.")
360. For scholarship in agreement with this practice, see Gerald Reading Powell & Cynthia A. Leiferman, Results Most Embarrassing: Discovery and Admissibility of Net Worth of the Defendant, 40 Baylor L. Rev. 527, 533 (1988) ("On pure relevance grounds if the court admits net worth evidence in a case in which liability coverage exists, then the court should also admit evidence of liability insurance coverage.")
361. Schwartz, supra note 72, at 1247-48 ("If a defendant introduces evidence of personal financial circumstances in order to persuade the jury to award low punitive damages, when in fact the defendant's punitive damages will be indemnified, failure to inform the jury about indemnification seriously misleads the jury.").
362. Kemezy v. Peters, 79 F.3d 33, 37 (7th Cir. 1996).
363. City of Monterey v. Del Monte Dunes, 526 U.S. 687, 727 (1999) (Scalia, J., concurring) (citation omitted).
364. For scholarship supportive of vicarious liability for this reason, see, for example, Schuck, supra note 13, at 101 ("Governmental liability would clearly maximize the probability that officially inflicted harms would be adequately compensated.").
365. Supra notes 203-08 and accompanying text (describing the Maimaron case, in which the plaintiff and officer defendant jointly sued the Commonwealth of Massachusetts so that it would indemnify the officer)
366. Supra notes 217-20 and accompanying text (describing the Jimenez case, in which the plaintiff sued Los Angeles County after it refused to satisfy a punitive damages judgment entered against one of its officers)
367. I am unaware of plaintiffs' attorneys contesting more limited contributions to settlements, as in the thirty-seven to thirty-nine cases described in Part II.F.
368. Supra notes 160-68 and accompanying text (describing instances in which plaintiffs agreed to settlements paid entirely by the government entity after juries awarded punitive damages against individual officers)
369. Additional research is necessary to fully understand the impact of indemnification policies and practices on litigant behavior in police misconduct cases. For illuminating research about how the source of settlement and judgment dollars influences litigant behavior in other contexts, see Tom Baker, Blood Money, New Money, and the Moral Economy of Tort Law in Action, 35 Law & Soc'y Rev. 275, 284-85 (2001) (studying plaintiff attorneys in Connecticut and finding that plaintiffs in "ordinary negligence case[s]-such as a routine auto accident, a doctor who made an understandable mistake, or a 'slip and fall'"-prefer to recover against insurance companies than to seek money directly from defendants, but that plaintiffs seek "blood money" against defendants who have engaged in what is considered moral wrongdoing).
370. Boundedly rational officers could still, of course, have unreasonable expectations that they will be held financially responsible for settlements and judgments. See supra notes 271-78 and accompanying text (describing officers' possible concerns).
371. Schwartz, supra note 18, at 1076-77 (describing evidence that police misconduct suits do not have significant negative effects on officers' employment).
372. Supra notes 280-82 and accompanying text (describing studies of lawsuits' deterrent effects on officers).
373. Benefits and Salary Overview, NYPD, http://www.nypdrecruit.com/benefits-salary/overview (last visited Feb. 5, 2014) (reporting that officer candidates earn almost $45,000 in total pay in the police academy and over $76,000 per year in base pay after five and a half years as officers).
374. Schwartz, supra note 268, at 880-81 (describing many ways in which litigation outcomes may not reflect the strength or merits of plaintiffs' claims).
375. Emery & Maazel, supra note 72, at 592 ("If our society is to encourage public service and attract qualified public servants, public officials cannot face financial ruin for every careless mistake that causes someone damage. Society must bear that cost.")
376. On the other hand, officers who are judgment proof-like the Los Angeles County Sheriff's Department deputy who was in prison when he was found liable for assaulting an inmate at the Los Angeles County Jail-are unlikely to be much deterred by the imposition of personal liability. For a description of the case against the imprisoned Los Angeles County Sheriff's Department's deputy, see supra notes 217-20
377. Steven Shavell, The Judgment Proof Problem, 6 Int'l Rev. L. & Econ. 45, 54 (1986) (observing that one problem created by injurers' lack of assets is that injurers may tend "to engage excessively in risky activities and to fail to exercise adequate care when so doing").
378. Another alternative would be for law enforcement officers to purchase professional liability insurance individually or through their unions. It is unclear whether and to what extent personal liability insurance is available for law enforcement officers. Virginia law requires that state troopers enter into a bond or purchase personal liability insurance (with the premiums paid by the state). See Va. Code Ann. § 52-57 (2013)
379. But police officers discussing this issue at an online bulletin board reported that there is no professional liability insurance available for nonfederal law enforcement officers. See kingcop36, Comment to Professional Liability Insurance, Officer.com (July 31, 2009, 5:55 AM), http://forums.officer.com/t121675/ ("You will find that no one offers professional liability insurance for police officers (except on the federal level). If you purchase an umbrella policy, that will NOT cover you for your job as a law enforcement officer.")
380. Schuck, supra note 13, at 85 (discussing the unlikelihood that law enforcement officers can purchase private insurance for their on-duty conduct). The availability and sensibility of professional liability insurance for law enforcement officers as a means of risk spreading are topics worthy of further research and consideration.
381. Supra Part II.F & Appendix H (describing these cases).
382. In particularly egregious cases, officers' resources could be completely depleted before their employers would be required to contribute.
383. Supra note 196 and accompanying text (describing this possible explanation for New York City's requirement that some officers contribute).
384. Supra notes 304-05 and accompanying text (discussing this possibility and noting the tendency of jurisdictions to indemnify punitive damages regardless of official policy).
385. This same assumption operates in tort law. Private firms are expected to improve accountability and behavior if they are forced to internalize litigation costs through enterprise liability. See, e.g., Jon D. Hanson & Kyle D. Logue, The First-Party Insurance Externality: An Economic Justification for Enterprise Liability, 76 Cornell L. Rev. 129, 143-44, 160-61 (1990) (arguing that manufacturers and consumers will make optimal investments in accident prevention when they have internalized total accident costs, which include litigation costs).
386. Schuck, supra note 13, at 104.
387. Owen v. City of Independence, 445 U.S. 622, 652 (1980) ("[T]he threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights.")
388. Fallon, supra note 16, at 496 ("If government entities routinely indemnify their officials, they would certainly have an incentive to provide those officials with training regarding applicable law.")
389. Fisk & Chemerinsky, supra note 56, at 796 (arguing that vicarious liability "gives municipalities a greater incentive to monitor, supervise, and control the acts of their employees," and that "[l]ocal governments, with inherently scarce resources, obviously want to minimize the amount of their budget that is lost to paying damages").
390. Rachel Harmon, Limited Leverage: Federal Remedies and Policing Reform, 32 St. Louis U. Pub. L. Rev. 33, 38 (2012) ("While data on police conduct and misconduct is difficult to obtain, most participants in Saint Louis University Public Law Review's Symposium, and elsewhere, take for granted the need for additional efforts by police departments to promote civil rights through departmental reform because civil rights violations continue to occur.")
391. Schwartz, supra note 268, at 870 ("[I]nternal affairs investigations have long been found to be inadequate and incomplete. Indeed, no outside reviewer has 'found the operations of internal affairs divisions in any of the major U.S. cities satisfactory.'" (quoting Human Rights Watch, Shielded from Justice: Police Brutality and Accountability in the United States 65 (1998)))
392. This is not to say that lawsuits have no effect on law enforcement agencies. As I have previously observed, "high-profile cases and large damages awards may inspire behavior change" even if "deterrence does not function as expected when it comes to run-of-the-mill damages actions." Schwartz, supra note 268, at 846. The fear of litigation more generally may also cause departments to hire personnel and create recordkeeping and other procedures that can lead to a reduction of harms
393. Margo Schlanger, Operationalizing Deterrence: Claims Management (in Hospitals, a Large Retailer, and Jails and Prisons), 2 J. Tort L. 1 (2008) (observing the ways in which efforts to reduce liability risk can lead to performance improvements in three organizational settings).
394. Schwartz, supra note 18 (demonstrating this lack of information tracking by law enforcement agencies).
395. Supra note 85 and accompanying text (describing the law enforcement agencies that collected this information).
396. See Appendix G (listing jurisdictions without responsive data about litigation payouts).
397. Human Rights Watch, supra note 337, at 80 ("[I]n most cities civil settlements paid by the city on behalf of an officer usually are not taken from the police budget but are paid from general city funds.")
398. Miller & Wright, supra note 15 at 781-82 ("[T]he monetary cost of judgments against police are not always fully or directly borne by police departments or by individual officers. Civil judgments come out of city or county funds, or perhaps from insurance policies that the local government purchases-i.e., from taxpayers.")
399. Schwartz, supra note 18, at 1047-48 (describing New York City's practice of satisfying settlements and judgments out of the city's general budget).
400. Harmon, supra note 337, at 46 ("[Governmental budgetary outlays] do not translate easily into political and financial costs for police chiefs and the political actors that shape their incentives and budgets ")
401. Levinson, supra note 72, at 347 ("Because government actors respond to political, not market, incentives, we should not assume that government will internalize social costs just because it is forced to make a budgetary outlay.").
402. Rachel A. Harmon, The Problem of Policing, 110 Mich. L. Rev. 761, 799 (2012) ("Collective bargaining rights deter department-wide changes intended to prevent constitutional violations ")
403. Samuel Walker, Institutionalizing Police Accountability Reforms: The Problem of Making Police Reforms Endure, 32 St. Louis U. Pub. L. Rev. 57, 71 (2012) ("[I]t seems that virtually everyone with an interest in policing-citizens, civic leaders, reform activists, and scholars-believes that police unions are extremely powerful, have a major influence on police practices, and are a principal obstacle to change.").
404. Harmon, supra note 343, at 811-12 (observing that "the harms of policing are unevenly distributed" and "those who suffer the extra burdens of policing frequently lack the cohesiveness and organization necessary for advocacy success")
405. The costs of settlements and judgments are more evenly distributed, but individual taxpayers may not be sufficiently motivated to organize around the costs of police misconduct suits.
406. For example, the approximately $8.9 million paid to plaintiffs in civil rights cases brought against the Los Angeles Sheriff's Department and its deputies each year is just.30% of the Sheriff's Department's $2.9 billion budget, and just.04% of the county's $26 billion budget in 2013-14. See County of Los Angeles 2013-14 Final Budget 63 (2013), available at http://ceo.lacounty.gov/pdf/portal/2013-14%20Final%20Budget%20112713.pdf (describing the Sheriff's Department's budget)
407. County of Los Angeles Final Adopted Budget Charts 2013-14, at 2, available at http://ceo.lacounty.gov/pdf/budget/2014/2013-14%20Final%20Adopted%20Budget%20Charts.pdf (describing the county's budget)
408. The approximately $176,000 paid to plaintiffs in civil rights cases brought against the Montgomery County Police Department and its officers each year is less than.07% of the police department's over $260 million budget and less than.004% of the county's $4.81 billion budget in fiscal year 2014. See Montgomery Cnty. Police Dep't, FY14 Operating Budget and Public Services Program FY14-15, at 1, available at http://www.montgomerycountymd.gov/OMB/Resources/Files/omb/pdfs/fy14/psp_pdf/pol.pdf (describing the police department budget)
409. Memorandum from Jennifer A. Hughes, Dir., Off. of Mgmt. & Budget, to Interested Readers (July 1, 2013), available at http://www.montgomerycountymd.gov/OMB/Resources/Files/omb/pdfs/fy14/psp_pdf/message.pdf (describing the Montgomery County budget for fiscal year 2014)
410. The approximately $2.2 million paid to plaintiffs in civil rights cases brought against the Albuquerque Police Department and its officers each year is just 1.37% of the police department's over $162 million budget and.26% of the city's $870 million budget in 2013-14. See City of Albuquerque FY14 Approved Budget 1, 22 (2013), available at http://documents.cabq.gov/budget/fy-14-approved-budget.pdf (describing the city and police department budgets).
411. This is a recommendation I have previously made regarding lawsuits against the New York City Police Department. See Joanna C. Schwartz, Watching the Detectives, N.Y. Times, June 16, 2011, at A35 ("[T]he city could require the Police Department to settle lawsuits out of its own budget, instead of the city's general coffers. Perhaps if the department held its own purse strings, it would find more to learn from litigation.")
412. This is also a recommendation made previously by the New York City Comptroller, who observed that the City's Health and Hospitals Corporation instituted risk management efforts and reduced litigation costs after becoming financially responsible for claims. See John C. Liu, City of New York Office of the Comptroller, Claims Report Fiscal Year 2011, at 8 (2012) ("[T]he Comptroller's Office again recommends that the City implement a process whereby agencies bear some financial accountability for claim activity.").
413. The New York City Council has attempted to get additional access to police lawsuits and payouts. For a description of these efforts, see Schwartz, supra note 268, at 874 n.184.
414. Schwartz, supra note 268, at 849-52 (describing outsiders' review of police misconduct cases in the Los Angeles County Sheriff's Department and police departments in Seattle, Portland, Denver, and Chicago)
415. Walker, supra note 343, at 84 (arguing that "the police auditor form of citizen oversight" is the best available means of maintaining police accountability reforms over the long term).
416. Schwartz, supra note 268 (describing policies to gather and analyze litigation data in five litigation-attentive law enforcement agencies).
417. The Supreme Court created an analogous affirmative defense to liability in the Title VII context by allowing an employer to defend against hostile work environment claims by showing that it took reasonable care to protect against or remedy a hostile working environment, and that the employee did not take advantage of measures adopted by the employer to address workplace harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indust., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Scholars have, however, criticized lower courts' application of the defense
418. Joanna L. Grossman, The First Bite Is Free: Employer Liability for Sexual Harassment, 61 U. Pitt. L. Rev. 671, 677 (2000) ("As applied, the affirmative defense undermines Title VII's goal of compensating victims of discrimination while not serving its deterrence rationale.")
419. Martha S. West, Preventing Sexual Harassment: The Federal Courts' Wake-Up Call for Women, 68 Brook. L. Rev. 457, 461 (2002) (observing that federal courts "are interpreting 'reasonable care' in the first prong of the new affirmative defense to require only minimal prevention efforts by the employer" and are requiring plaintiffs "to produce hard-to-find evidence of specific facts justifying any failure on their part to complain to employers").
420. Harmon, supra note 337, at 55 (describing ways in which the federal government could encourage police accountability through grants and other incentives).
421. Imbler v. Pachtman, 424 U.S. 409, 424-25 (1976).
422. For a description of the pervasiveness of prosecutorial misconduct and limited safeguards and remedies to protect against prosecutorial misconduct, see Margaret Z. Johns, Unsupportable and Unjustified: A Critique of Absolute Prosecutorial Immunity, 80 Fordham L. Rev. 509, 512-22 (2011).
423. See Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998) (holding that local legislators have absolute immunity when acting in their legislative capacity)
424. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (holding that judges are absolutely immune from liability so long as they do not act in "clear absence of all jurisdiction").
425. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (quoting Butz v. Economou, 438 U.S. 478, 506 (1978))