Republicans in the House and Senate have introduced legislation they are calling the Back the Blue Act of 2017. The Senate bill, introduced by John Cornyn (R-Tex.) was co-sponsored by 15 senators, all Republicans, with an identical House bill introduced by Ted Poe (R-Tex.), which includes five co-sponsors, also all Republicans.
Among other things, the bill would create new federal crimes granting federal police discretion over local jurisdictions, and, among the most serious aspects, it would likely shield police officers from virtually any civil liability, even in cases of egregious misconduct.
But as Washington Post columnist and police critic Radley Balko writes this week, “[P]erhaps the most disturbing part of the bill is the new restrictions it puts on suing police officers for constitutional violations.”
Under existing law, police are protected by qualified immunity. This means that in order to sue and win, you have to show that not only did police violate your rights, but it creates a reasonable officer standard that requires proof that “a reasonable police officer should have known that the actions in question were a violation of the Constitution.”
According to Mr. Balko, “Under this bill, even if you can show all of that, if the police can show that the violation and resulting injuries were ‘incurred in the course of, or as a result of, or . . . related to, conduct by the injured party that, more likely than not, constituted a felony or a crime of violence . . . (including any deprivation in the course of arrest or apprehension for, or the investigation, prosecution, or adjudication of, such an offense),’ then the officers are liable only for out-of-pocket expenses.”
Moreover, the bill would bar plaintiffs from recovering attorneys’ fees in such cases. This would effectively cut off a lot of pro bono attorney work because most civil rights attorneys take these case on contingency because, when they prevail, they can get their attorney fees recovered even in cases where the plaintiff is effectively indigent.
Writes Mr. Balko, “This means that if the police raid your home with a search warrant for pot and shoot you dead, even if your family can show that the shooting was unlawful, the police would be liable only for something like funeral expenses if they could show that ‘more likely than not,’ you had sold some pot, or at some point possessed a large enough quantity of the drug to merit a felony charge.”
In some jurisdictions, merely resisting arrest is a felony. In theory, Mr. Balko argues that “this could mean that under a scenario in which the police falsely arrest you, you resist, and they then severely beat you, if they could show that the beating was the result of your resisting, not the false arrest, you could be barred from suing for anything other than the cost of treating your injuries. If the resisting charge could be filed as an assault, that’s already a felony in most jurisdictions, and even where it isn’t, under this bill it would become a federal felony.”
If this bill passes, Mr. Balko believes “it would become nearly impossible to sue the police in all but the most egregious instances of abuse, and, even then, only in cases where the victim is basically beyond reproach.”
He notes, “These sorts of lawsuits are incredibly expensive. The relatively rare large award is the incentive for civil rights attorneys to take on these cases in the first place and can often be what funds their ability to take on cases less likely to pay out large damages. Removing the ability to collect compensatory or punitive damages, or even recover attorneys fees, basically means it would become even more difficult for victims of police abuse to find representation.”
Radley Balko spoke with some attorneys to get their assessment of the bill.
“The whole purpose of section 1988 [the federal law that reimburses attorneys who successfully bring civil rights cases] was to encourage lawyers to take the small cases — the illegal pat-down, the false arrest — the ones that don’t promise a big payout,” says Joel Berger, a civil rights attorney in New York who has handled police abuse cases for more than 40 years. “You need people to take those cases to keep the government accountable.”
Robert Phillips, one of just a handful of attorneys who take police abuse cases in South Carolina, agrees.
“This bill would effectively end all police liability,” Mr. Phillips says. “It would end my practice. It would end the practices of the other attorneys who work in this area. It would severely restrict access to the courts. It would basically make it impossible for victims of police abuse to sue anytime, anywhere.”
Mr. Balko believes, “Another possible consequence of the bill is that true victims of police abuse could be more likely to face unmerited criminal charges. Police and prosecutors are already accused of bringing unwarranted charges in abuse cases, then leveraging those charges — agreeing to drop them in exchange for a promise from the victim not to sue. Because the police would need to show only some connection to felony or violent acts by a preponderance of the evidence, merely filing a felony charge would likely dissuade most attorneys from taking a victim’s case.”
“There’s a term in policing called box-carring,” Mr. Phillips says. “It means you pile all the charges you can on somebody so you can force them to take a plea. That’s what you’re going to see here. Imagine you’re a protester who gets beaten up by the cops. The local police will hit you with all the usual charges of resisting police, rioting and assault. But now you could also be looking at a separate federal trial for assault. That’s thousands of dollars more in legal fees — and a virtual guarantee against you ever filling a lawsuit.”
“It’s an outrageous proposal, says Mr. Berger. “You’re going to insulate police officers from any civil liability. You’re turning killing of police officers into a federal crime, regardless of the circumstances. You’re deterring lawyers from taking these cases. It’s just bad news.”
The provision limiting damages could be particularly potent in cases where the victim doesn’t survive.
“They only need to show that you ‘more likely than not’ committed a felony,” Mr. Phillips says. “If four police officers say you reached for a cop’s gun, that’s a felony. It’s rare that you’re going to win that argument, anyway. But now imagine you can’t even make it, because they shot you dead. Your family will get nothing. Maybe you get them to pay for a funeral. Nothing more.”
Mr. Balko writes, “Even the general principle behind the bill is misguided. There just isn’t much evidence to support the notion that cops are getting sued left and right over petty infractions. Again, it’s already extremely difficult to sue a police officer.”
“We have seen a significant increase in these lawsuits in New York,” says Mr. Berger. “But that isn’t because these people are greedy or money-hungry. It’s because they’re unsatisfied with internal discipline and with the civilian review board. They’re not asking for huge sums, they’re just asking for accountability.
“It’s true that some large cities have paid out hefty totals to settle police abuse cases in recent years. But those figures tend to be driven by a few huge awards or settlements in cases that generated a lot of media attention. Outside large urban centers, it’s harder to get that sort of attention, particularly if there’s no viral video,” he writes.
“With new legislation, we usually pay more attention to the bills that take smaller bites out of something like access to the courts,” Mr. Phillips says. “Those are the ones more likely to pass. The crazier bills usually don’t have a chance. Any other time, I’d dismiss a bill this egregious as just too nutty to ever get a vote. But we’re in the Trump era. So there’s a lot more reason to worry.”
—David M. Greenwald reporting