May 13, 2020 Feature

“Lawful but Awful”: High Burden for Prosecution of Bad Police Actions

By Bill Choyke

Since the incident in Ferguson, Missouri, five and a half years ago, interaction between police and U.S. residents, particularly minority communities, has led to a series of highly publicized incidents nationwide, often resulting in federal civil rights litigation.

Since Ferguson, Mo., interaction between police and U.S. residents has led to a series of highly publicized incidents nationwide.

Since Ferguson, Mo., interaction between police and U.S. residents has led to a series of highly publicized incidents nationwide.

Christian Fischer / EyeEm via Getty Images

On occasion, members of law enforcement have been criminally charged and convicted, such as in cases in North Charleston, South Carolina, and Dallas. But more often the officer is not charged or convicted although plaintiffs have frequently prevailed in civil action or received out-of-court settlements.

A panel of legal experts at the American Bar Association Midyear Meeting in Austin, Texas, on February 15 explored why this is happening while examining how case law has evolved, particularly since Ferguson in summer 2014 when an 18-year-old African American man, Michael Brown, was fatally shot by a 28-year-old white Ferguson police officer, Darren Wilson. The panelists agreed that police accountability is critical; and they also said that for now the law, including court decisions, puts a high burden for civil liability arising out of claims of bad police actions.

“Many times,” observed Paul D. Henderson, executive director of the Department of Police Accountability in San Francisco, “we see behaviors that are lawful but awful.”

The program, “Police Civil Rights Litigation: From Ferguson to Dallas—2020 Vision Today?” explored the legal concept of qualified immunity, which gives law enforcement officers immunity from civil liability when their actions do not violate a clearly established statutory or constitutional right.

Ronald A. Norwood, a defense lawyer with Lewis Rice LLC in St. Louis who has served as counsel to the St. Louis Metropolitan Police Department, said the burden of proving civil liability against police officers is high because the courts have said that qualified immunity exists if the officer can demonstrate “probable cause or arguable probable cause” for his or her actions or where a plaintiff fails to identify clearly established law prohibiting the particular conduct.

“Officials should not be held liable for bad guesses,” Norwood said, explaining liability typically results from transgressions of a bright line. Decisions as to whether an officer acted reasonably in a given instance depend on the “totality of the circumstances,” he added.

Ranjana Natarajan, a professor and director of the Civil Rights Clinic at the University of Texas School of Law in Austin, agreed that the table is tilted in favor of the defense in police misconduct cases. But she said the police and communities share two common goals that both sides embrace in these cases—accountability and truth.

She observed that in the spate of cases where a loved one has been killed or injured, families “are looking for some kind of closure.” She lamented that qualified immunity leads to lengthy litigation both in criminal and civil contexts, and that this “causes a delay in closure.”

“What they want is impartial people to look at the complaint and have closure on it,” she said of victims and families.

Henderson, a former prosecutor in the Bay Area, said his police accountability agency investigates, reviews, and audits. But it can only bring non-criminal complaints against officers. Somewhat uniquely, the agency has a powerful tool to compel a statement from an accused officer. The tool: Under terms of employment, the officer agrees to cooperate with his agency on these civil matters or risk losing his or her job and pension.

While Henderson’s agency dates to 1982, it has gained more teeth under him, he said. Complaints against police, for instance, can be filed electronically and in seven languages. And there is no deadline to file a complaint after an incident.

“This is the cutting edge,” Henderson noted. “When we talk about criminal justice reform, this is criminal justice reform.”

This program, moderated by Dallas area attorney Edwin P. Voss Jr., was sponsored by the ABA Section of State and Local Government Law. For more from the Midyear Meeting, visit http://ambar.org/lg398121284.

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By Bill Choyke

Bill Choyke is senior strategist for the ABA Media Relations and Strategic Communications Division, Washington, D.C.