“Should Tort Law Care About Police Officers?,” by Ellen Bublick (ASU) & Jane Bambauer (Florida)
An interesting response to The Plaintiff Police by Sarah L. Swan, Rutgers (Newark); here’s the Introduction:
If a person purposely shoots at and injures another, should the shooter be accountable to pay damages to the person harmed? Absent significant justification, in almost every circumstance in every state, the answer is yes. But in The Plaintiff Police, Professor Sarah L. Swan argues that if the injured person is a police officer, the answer should be no. If the officer is hit by a negligent driver’s car, she argues for the same result: no tort claim. Professor Swan would dramatically limit police claims to exclude intentional, reckless, and negligent torts, with only narrow exceptions.
As support for this extreme measure, The Plaintiff Police draws on the backdrop of historical racism, significant abuses of police power, and a set of cases that push the limits of tort liability no matter who brings the claim. That set includes Doe v. Mckesson, in which a police officer who was severely injured by a rock-throwing protestor filed suit against Black Lives Matter (BLM) protest organizers (a case that we have previously criticized as insufficiently protective of First Amendment rights). Alongside concerns about racism in policing, The Plaintiff Police draws on the widespread perception that injured civilians can rarely obtain civil remedies for police abuses.
Together, these impressions of vindictive police plaintiffs, and immunity from tort liability, foster a reflexive hostility to the police. In light of these impressions, Professor Swan argues that any possibility of civil action or recovery by police officers will be disproportionate to civilian legal actions, worsen power differentials, dampen political participation, and harm local citizen-community participation. On that basis, The Plaintiff Police argues for a draconian, if easy to administer, rule: if the plaintiff is a police officer, the court should toss out the plaintiff’s claims at the start of the case.
We are aware of no state or country that has granted its entire population absolute immunity from civil liability for the tortious, even criminal, harms that its civilians inflict on police. And we think there are good reasons they haven’t. In this Response, we argue that the arc of U.S. common law runs in the exact opposite direction: the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including civilians wrongfully injured by police and police wrongfully injured by civilians.
The Plaintiff Police uses officer suits from injuries suffered during BLM protests to argue that tort claims filed by police officers are necessarily “a familiar backlash to African Americans who dare seek equal justice under the law.” However, the tort claims filed by Capitol police officers injured on January 6th serve as important counterpoints—reminders that officers’ personal rights of redress are an important feature of equal justice under the law. Racial equality is not served by complete immunities for civilian misconduct any more than “law and order” is served by complete immunities for police officers who abuse their power.
In Part I, we lay out our understanding of the current state of affairs for civil claims pursued by police and contrast it with the picture of current suits painted by The Plaintiff Police. In Part II, we correct the record about police defendants, showing that the civil-justice system should, and does, allow for a range of claims against individual police officers, their departments, and federal, state and local entities. In Part III, we challenge Professor Swan’s normative claim that officers’ pursuit of individual tort claims for injuries suffered is inherently bad for society. To the contrary, we see much value in deterring tortious or otherwise unlawful conduct through civil, rather than criminal, enforcement, both for police and for civilians.
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