Laws &quot;insulating&quot; police from lawsuits
<p>In <a href="https://www.unionleader.com/news/courts/more-than-k-paid-out-in-settlements-against-salem-police/article_f3ba58c0-ff1b-5267-9373-c40430fe30bf.html" rel="nofollow noreferrer">a news article describing a local attorney's multiple lawsuits against various officers in the police department of Salem, NH</a>, the article said:</p>

<blockquote>
  <p>Vogelman files the suits in federal court because he says it’s “almost
  impossible” to sue a police officer in state court, given statutes
  that insulate them from litigation.</p>
</blockquote>

<p>What statutes are these?</p>

<p>There are a few main factors that limit law enforcement liability in a civil lawsuit:</p>
<h1>1. Governmental Immunity Statutes.</h1>
<p>Usually, a state has a governmental immunity act that bars tort liability of state or local governments and of governmental officials acting in their official capacity, except for some narrow exceptions, the most common of which are for negligence in situations that are very similar to cases in which non-governmental agencies are operating (e.g. car accidents, slip and falls at government facilities, medical malpractice by doctors at government owned hospitals, etc.). Usually there is not an exception for intentional torts by law enforcement officers acting in their official capacity. Usually, damages are limited and punitive damages are not allowed at all. In New Hampshire, this is found at Revised Statutes Annotated Chapter 507-B. See e.g. <a href="http://www.gcglaw.com/resources/municipal/nh-immunity.html" rel="nofollow noreferrer">here</a>.</p>
<h1>2. Statutes of Limitations</h1>
<p>Usually, the kind of state law torts that could give rise to police liability have short statutes of limitations that are often further curtailed by special shorter deadlines that apply to suits against governments and government officials. New Hampshire is relatively liberal in this regard with <a href="https://statelaws.findlaw.com/new-hampshire-law/new-hampshire-civil-statute-of-limitations-laws.html" rel="nofollow noreferrer">a three year statute of limitations for most civil actions</a> that could conceivably give rise to law enforcement action related liability.</p>
<p>(<a href="https://law.justia.com/codes/colorado/2016/title-24/administration/article-10/" rel="nofollow noreferrer">In Colorado</a>, in contrast, the statute of limitations to file a notice of claim against a governmental entity is six months and the statute of limitations for intentional torts in the event that a court finds that an police officer's conduct was outside the scope of his or her official duties is <a href="https://law.justia.com/codes/colorado/2016/title-13/limitation-of-actions/article-80/section-13-80-103/" rel="nofollow noreferrer">one year</a>.)</p>
<h1>3. Federal Liability Claims</h1>
<p>The main kinds of liability that the U.S. Constitution prevents state governmental liability statutes from providing immunity from are suits under <a href="https://www.law.cornell.edu/uscode/text/42/1983" rel="nofollow noreferrer">42 U.S.C. § 1983</a> (i.e. civil rights lawsuits), and suits arising under the due process clause of the <a href="https://www.law.cornell.edu/constitution/fifth_amendment" rel="nofollow noreferrer">5th Amendment</a> as incorporated through <a href="https://www.law.cornell.edu/constitution/amendmentxiv" rel="nofollow noreferrer">the 14th Amendment</a> and under the 14th Amendment directly (i.e. inverse condemnation actions alleging a taking without due process or compensation).</p>
<h2>A. § 1983 Lawsuits</h2>
<p>There are several barriers to recovery under 42 U.S.C. § 1983 a.k.a. the <a href="https://en.wikipedia.org/wiki/Third_Enforcement_Act" rel="nofollow noreferrer">Third Enforcement Act</a> (<em>see generally, e.g.</em>, Allison L. Patton, &quot;<a href="https://repository.uchastings.edu/cgi/viewcontent.cgi?article=3108&amp;context=hastings_law_journal" rel="nofollow noreferrer">The endless cycle of abuse: why 42 USC 1983 is ineffective in deterring police brutality</a>&quot; Hastings LJ (1992)). Note also that the limitations below apply primarily to retrospective suits for money damages. Not all of these limitations apply to prospective relief in the form of an injunction prohibiting certain kinds of conduct in the future.</p>
<p>i. There is no vicarious liability. <em>See, e.g.</em>, <a href="https://www.hinshawlaw.com/newsroom-updates-319.html" rel="nofollow noreferrer">here</a>. So, a government is not responsible unless it as an entity, and not just an agent or employee, has an intent to violate someone's civil rights. This factor is somewhat less important than it seems in practice, because a law enforcement officer's employer or union will usually advance the costs of defense of a civil rights action (something not normally available for intentional tort lawsuits in the private sector) and will often agree to indemnify a law enforcement officer defendant in a settlement or after an award against a law enforcement officer defendant.</p>
<p>The absence of vicarious liability also means that you can only prevail if you can determine that a particular named individual violated your rights. It is not sufficient to know, for example, that some unnamed police officer in a particular city's police department violated your rights.</p>
<p>In contrast, if you are harmed by an unnamed employee or agent of a private business corporation, because of the much maligned doctrine of corporate personhood, <a href="https://en.wikipedia.org/wiki/Vicarious_liability" rel="nofollow noreferrer">the corporation can be held liable for that unnamed employee's acts anyway</a>, which is usually better than proving liability on the part of the employee because usually the employer has a greater ability to pay a judgment than an employee.</p>
<p>ii. There is only liability for intentional violations of civil rights. If mere negligence, § 1983 does not provide a remedy. <em><a href="https://supreme.justia.com/cases/federal/us/474/327/" rel="nofollow noreferrer">Daniels v. Williams</a></em>, 474 U.S. 327 (1986). If poorly designed systems cause someone's civil rights to be violated, it is usually impossible to identify someone whose more culpable than negligent conflict is responsible for this violation.</p>
<p>iii. Police officers have <a href="https://en.wikipedia.org/wiki/Qualified_immunity" rel="nofollow noreferrer">qualified immunity</a> from liability under § 1983 (a doctrine created surprisingly recently). This means that the police officer must have allegedly intentionally violated a well established right, which basically means that there must be controlling case law governing the fact pattern in question. If there is no prior controlling case law, the police officer does not have liability even if the court finds on the merits that the victim's civil rights were indeed violated. It is basically a &quot;one free bite&quot; rule.</p>
<p>iv. Unlike most other legal issues in civil lawsuits (the main other issue treated similarly is jurisdiction), issues of qualified immunity can be raised at the motion to dismiss stage, before any other response to the lawsuit is required, even if it requires a judge to consider disputed evidence to resolve it, and if the judge rules against the police on the issue of qualified immunity, <a href="https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1494&amp;context=wlulr" rel="nofollow noreferrer">they can immediately appeal the ruling</a>, rather than waiting until the case is resolved on the merits at the end of the case. Appellate case law on qualified immunity frequently analyzes facts in an unreasonable manner that a jury could disagree with, even though it is not suppose to do that.</p>
<p>v. While local governments and state and local government officials can be sued in federal court pursuant to § 1983, <a href="https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_United_States_Constitution" rel="nofollow noreferrer">the 11th Amendment</a> to the United States Constitution bars lawsuits against state governments in the federal courts in most circumstances, unless the state governments have expressly waived their immunity from suit. (N.B. I have linked to Wikipedia rather than just the text of the Amendment because the Courts, shortly after it was adopted and forever after that time, have interpreted the 11th Amendment to have a meaning contrary to its plain language and impossible to infer from its text alone.) For reasons that are doctrinally complex and obscure, the 11th Amendment generally bars § 1983 actions entirely against state governments although not against state government officials (in what is called a <em><a href="https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents" rel="nofollow noreferrer">Bivens</a></em> action), and not suits against local governments.</p>
<h2>B. Inverse Condemnation Actions</h2>
<p>There are barriers to <a href="https://en.wikipedia.org/wiki/Inverse_condemnation" rel="nofollow noreferrer">inverse condemnation</a> actions as well:</p>
<p>i. Inverse condemnation actions can be asserted against entities (which have vicarious liability for acts of their agents) but not against officers of government agencies. Usually, holding an entity strictly liable for actions of the entity's subordinates is a good thing for a plaintiff harmed by the government, but this doesn't provide a civil lawsuit mechanism for holding particular bad actors responsible for their conduct so it can be a poor incentive for individual governmental employees to act properly.</p>
<p>ii. Inverse condemnation actions apply only to property interests, not harms in the nature of lost of life, harm in the form of personal injuries, lost services or time, pain and suffering, emotional distress, or loss of dignity or other legally recognized rights. Punitive damages are also not generally available in an inverse condemnation action. <em>See, e.g.</em>, <a href="https://www.plaintiffmagazine.com/recent-issues/item/inverse-condemnation-and-damage-to-private-property" rel="nofollow noreferrer">here</a> (&quot;It is important to note at the outset that, under inverse condemnation, only damages to real and personal property are recoverable. The claim does not allow recovery of other damages.&quot;) (arguably intellectual or intangible property that is totally taken may also give rise to an inverse condemnation claim).</p>
<p>iii. Inverse condemnation actions are available only in the event of a &quot;total taking&quot;. <em><a href="https://supreme.justia.com/cases/federal/us/505/1003/" rel="nofollow noreferrer">Lucas v. South Carolina Coastal Council</a></em>, 505 U.S. 1003 (1992). Government action that reduces the value of property is not enough. For government action to be a &quot;total taking&quot; it must destroy all more than nominal economic value of the property in question.</p>
<h1>4. Why Does A Federal v. State Forum Actually Matter?</h1>
<blockquote>
<p>Vogelman files the suits in federal court because he says it’s “almost
impossible” to sue a police officer in state court, given statutes
that insulate them from litigation.</p>
</blockquote>
<p>This is either a misquotation or an erroneous statement. It is &quot;almost impossible&quot; to sue a police officer under state law, given the statutes that limit them from litigation such as RSA Chapter 507-B.</p>
<p>But, it is not materially more difficult to bring an action under 42 U.S.C. § 1983 in state court than it is in federal court from the perspective of statutory law or civil procedure rules, since state and federal courts have concurrent jurisdiction over such actions.</p>
<p>There are still good reasons to bring suit in federal court rather than state court under § 1983, and for these reasons this is how it is usually done. But, the reasons aren't statutory. Instead, they mostly pertain to the personnel involved.</p>
<h2>A. Jury Shopping</h2>
<p>Jury pool differences between state courts and federal courts are important. But, this factor varies from case to case and doesn't fully explain the strong pro-federal court choice of forum decisions made by Plaintiffs that we observe.</p>
<p>i. Federal court provides a larger jury pool, which is desirable when the violation of rights takes place in a jurisdiction less favorable to civil rights plaintiffs vis-a-vis law enforcement defendants.</p>
<p>ii. Further, the federal jury pool will typically include many jurors from outside the jurisdiction in which the law enforcement defendant are employed, while state courts will typically have jury pools that are drawn from the jurisdiction that employs the law enforcement defendants who will be among the people who may face increased tax liability for damages awarded for law enforcement misconduct. Like Congressmen, even if people are not favorably inclined towards law enforcement, in general, they are often more favorably inclined towards the law enforcement officials in their own jurisdiction who are protecting them (in theory) from crime.</p>
<h1>B. Implicit Judicial Bias.</h1>
<p>More importantly, in practice, state court judges presiding over § 1983 cases are usually more favorably inclined towards law enforcement defendants than federal court judges, and judges are unusually powerful in these kinds of cases. This, in turn, is a product of four main factors:</p>
<p>i. <a href="https://en.wikipedia.org/wiki/Regulatory_capture" rel="nofollow noreferrer">Regulatory capture</a> (state court judges have had law enforcement defendants testify before them in criminal cases on a routine basis and found them to be credible again and again, while routinely finding that criminal defendants, who are often demographically similar to or overlap with criminal defendants, to be not credible).</p>
<p>ii. Most state court judges are biased in favor of law enforcement, in part, because a large share of them are state and local government criminal prosecutors. This is also true of federal court judges (<a href="https://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf" rel="nofollow noreferrer">about 40% were prosecutors</a> before becoming judges) but to a lesser extent. Evidence of this bias at the appellate court level can be found <a href="https://www.ncsc.org/%7E/media/Files/PDF/Publications/Justice%20System%20Journal/PROSECUTORIAL%20EXPERIENCE.ashx" rel="nofollow noreferrer">here</a>. <em>See also</em> <a href="https://www.dailykos.com/stories/2016/4/27/1520718/-Former-prosecutors-shouldn-t-be-judges-Here-s-why?" rel="nofollow noreferrer">here</a> and <a href="https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&amp;httpsredir=1&amp;article=5105&amp;context=jclc" rel="nofollow noreferrer">here</a>.</p>
<p>iii. State court judges are part of a network of state and local government officials and politicians to whom they are favorably inclined who tend to strongly back the law enforcement officials who are also part of that network, while federal court judges, while still politically connected and not necessarily positively inclined towards civil rights defendants, have a much more attenuated connection to those networks of state and local government officials and politicians.</p>
<p>iv. State court trial judges are <a href="https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases" rel="nofollow noreferrer">typically more responsive to public opinion</a> and civil rights plaintiffs are often unpopular individuals.</p>
<h1>Footnote Re Sources</h1>
<p>In addition to the sources linked, my first &quot;real job&quot; out of law school including defending county governments and county officials from government liability claims. The matters for which there are no links to sources largely reflect the conventional wisdom of myself and my colleagues in that context.</p>

<p>In addition to <em>qualifie3d immunity</em> which also applies in federal court, many states have a <a href="https://en.wikipedia.org/wiki/Law_Enforcement_Officers%27_Bill_of_Rights" rel="nofollow noreferrer">"Law Enforcement officer's Bill of Rights"</a> such as <a href="https://law.justia.com/codes/maryland/2010/public-safety/title-3/subtitle-1/" rel="nofollow noreferrer">This one from Maryland</a>. For example <a href="https://law.justia.com/codes/maryland/2010/public-safety/title-3/subtitle-1/3-104/" rel="nofollow noreferrer">section 3-103(c)(2)</a> says:</p>

<blockquote>
  <p>(2) Unless a complaint is filed within 90 days after the alleged brutality, an investigation that may lead to disciplinary action under this subtitle for brutality may not be initiated and an action may not be taken.  </p>
</blockquote>

<p>Such laws prohibit any civilian review board from investigating or interrogating any officer. <a href="https://www.baltimoresun.com/news/maryland/bal-a-brief-look-at-how-the-maryland-law-enforcement-officers-bill-of-rights-was-passed-20160223-story.html" rel="nofollow noreferrer">This article from the Baltimore Sun</a> discusses the Maryland version, its history and current effects.</p>

<p>In <a href="https://www.washingtonpost.com/news/the-watch/wp/2015/04/24/the-police-officers-bill-of-rights/?utm_term=.447111788f39" rel="nofollow noreferrer">this Washington Post article</a> it is noted that:</p>

<blockquote>
  <p>Unlike a member of the public, the officer gets a “cooling off” period before he has to respond to any questions. Unlike a member of the public, the officer under investigation is privy to the names of his complainants and their testimony against him before he is ever interrogated. Unlike a member of the public, the officer under investigation is to be interrogated “at a reasonable hour,” with a union member present. Unlike a member of the public, the officer can only be questioned by one person during his interrogation. Unlike a member of the public, the officer can be interrogated only “for reasonable periods,” which “shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.” Unlike a member of the public, the officer under investigation cannot be “threatened with disciplinary action” at any point during his interrogation. If he is threatened with punishment, whatever he says following the threat cannot be used against him.</p>
</blockquote>

<p>I believe that in at least some states, even complaints that resaulted in disciple may not be introduced in later separate cases, in an attemtp to prove a pattern of misconduct by the officer.</p>

<p>I would assume that the context of his statement is regarding <em><a href="https://en.wikipedia.org/wiki/Qualified_immunity" rel="nofollow noreferrer">qualified immunity</a></em>.</p>

<blockquote>
  <p>Qualified immunity is a legal doctrine in United States federal law
  that shields government officials from being sued for discretionary
  actions performed within their official capacity, unless their actions
  violated "clearly established" federal law or constitutional rights.
  Qualified immunity thus protects officials who "make reasonable but
  mistaken judgments about open legal questions," but does not protect
  "the plainly incompetent or those who knowingly violate the law".</p>
</blockquote>

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