The best way forward: Address the police accountability gap

There’s much discussion right now about how to change policing in America.

The interplay of two legal constructs — municipal liability and qualified immunity — dis-incentivize law enforcement agency excellence, sometimes deny compensation to aggrieved families, and send a distinct message that there is no accountability in law enforcement. 

Fortunately, the nation need not federalize policing to rebalance risk and increase accountability. Rather, law enforcement agencies — like any other employer — should be held liable for the actions of their employees, and officers should be held individually liable for violating established constitutional law.

Congress must act to amend federal civil rights law through police accountability legislation to (1) make it easier to hold law enforcement agencies responsible for the actions of individual officers; (2) ensure that officers who act in good faith when confronted by novel circumstances are immune from civil liability, and (3) obligate courts to answer difficult constitutional questions so agencies and individuals can conform policy, training, and behavior to a body of constitutional law that keeps pace with emerging practices and technologies.    

Federal statutes and case law have artificially distanced elected leaders and law enforcement agencies from accountability to citizens. In most other areas of law, a doctrine called respondeat superior applies, literally translated to “let the master answer.” In practice, the employer is responsible for the acts of the employee. The law enforcement agency, however, cannot be held automatically liable under federal law because of the Monell rule, which means that agencies can only be liable for official policies and practices that themselves cause harm, not merely the malfeasance of an individual employee. Monell therefore decreases agency incentive to employ, train, and retain law enforcement officers who meet only the most rigorous standards. In turn, there is less accountability for elected officials and for their appointed or elected Chiefs of Police, Sheriffs, and Commissioners. This concept holds true even where local laws mandate ‘indemnification,’ meaning that the municipality is obligated to fund the defense or pay judgments against individual officers. A local contractual or statutory obligation to bear litigation expenses does not satisfy the national demand for law enforcement to abide by all federal civil and constitutional rights, or be held accountable.  

Like Monell, qualified immunity is a creature of the courts. Qualified immunity sometimes protects government officials in federal civil rights cases from litigation burdens and financial risk associated with a judgment of liability. Notably, different court decisions created much broader all-encompassing immunity that protects judges and prosecutors, as well as witnesses who testify in court, from federal civil rights claims. This is true even if the judge or prosecutor commits an egregious constitutional violation, like refusing to a let a defendant cross-examine witnesses at trial, or if a witness herself commits perjury. Therefore, contrary to conventional wisdom, law enforcement officers have the least protection in the whole of the criminal justice system from federal civil liability for money damages, not the most. 

Qualified immunity extends to individual officer defendants who are alleged to have violated a plaintiff’s constitutional rights. Qualified immunity applies to federal civil rights claims, the very same type of claims where the Monell rule bars agency liability in most circumstances. And therein lies the civil liability gap — an accountability gap — where Monell bars the claim against the agency and qualified immunity bars the claim against the officer, meaning no one is liable to a plaintiff whose rights were violated by law enforcement. 

To determine an officer’s entitlement to qualified immunity, the trial court must answer two questions: (1) do the allegations in the case amount to a constitutional violation? and (2) was the law sufficiently clear at the time, such that any reasonable officer would know that what he/she was doing was unconstitutional? If at least one answer is “no,” the officer is immune from suit. 

Under a 2001 Supreme Court decision in Saucier v. Katz, the sequencing of the qualified immunity questions was mandatory. Courts were forced to decide the constitutional question first, and then assess whether the officer should have known that his or her conduct was unlawful. In 2009, the Supreme Court decided Pearson v. Callahan, giving courts discretion as to which question to answer first, a departure from mandatory sequencing. Consequently, courts have since declined to decide the first question, ignoring difficult constitutional issues in favor of merely acknowledging that there is no controlling case law determining the constitutionality of similar conduct. In turn, case law stagnated, despite rapid changes in use of force policies, tactics, technology, and equipment.

The Pearson decision makes qualified immunity an endless cycle of courts holding that the law is still not clearly established, amplifying the perception that plaintiffs have no path to hold officers financially accountable. Evolving technologies, tactics, and procedures are now essentially exempt from judicial scrutiny. Even law enforcement agencies with the most robust training programs are left with less controlling case law that would otherwise be used to develop use of force policies and scenario-based tactical training.  

People have a right to expect both excellence and accountability from institutions and individuals when lives are at stake.

The current menu of ‘reform’ proposals — defunding law enforcement, federalizing agency policies, judging uses of force with the full benefit of hindsight, eliminating defenses to civil claims for money damages, criminalizing good faith mistakes of fact or law — do nothing to align public expectations with agency performance or improve the quality of law enforcement service delivery. 

Congress can promote federalism, empower voters, and incentivize agencies to invest in professional excellence by rebalancing risk across agencies and individuals by changing the rules that limit the government’s exposure to liability for the actions of its employees, and by ensuring that developing case law will steadily inform and improve policy and training. The judiciary can then ensure that best practices evolve at pace with changes in crime rates, equipment, and technologies.     

Police accountability legislation that expands agency liability, moderately impacts individual liability, and returns the courts to their proper role in answering complex constitutional questions would ensure that law enforcement agencies can perpetually improve officer performance, would combat the perception that qualified immunity has a negative impact on officer accountability, and would still maintain public safety.   

Elizabeth M. Daitz is the executive director, strategic initiatives for the New York City Police Department. She previously served as a White House Fellow, where she was assigned as a special assistant to the Deputy Chief of Staff for Policy Coordination. This essay reflects the views of the author in her individual capacity, and not the views of any organization or employer.