Ilya Somin On Crimes Against and By Police

Often I disagree with Ilya Somin, a libertarian law professor and public intellectual.  But, on the issue of how to think about crimes against and by police, raised by high profile excessive force cases in Ferguson, Missouri and New York City that have spawned protests nationwide, and by the retaliatory assassination of two police in New York City by a man who then committed suicide a few days ago, he is spot on.

Law enforcement is a much less dangerous job than most people perceive it to be, and the existing system does an excellent job of holding people who try to harm law enforcement officers accountable.

The existing system, in contrast, does a poor job of holding bad cops accountable for their actions, which is unjust, which poisons the relationships between the police and the public, and which creates horrible incentives that basically encourage future police misconduct.

What Response Is Appropriate?

It is also notable that this problem is not simply a case of bad apples making a good system look bad.  Small town suburban Missouri and big cities like New York City, Cleveland, and Los Angeles have almost identical problems, for almost identical reasons.  The source of the problem is something common to almost every law enforcement agency in the country (at least to the extent that they deal with economically unequal racially or ethnically mixed populations), and needs to be addressed at the level of governmental institutions and legal frameworks for civil and criminal liability for police misconduct.

Reforming Civil Liability

I have long felt, and won't reiterate in this post at great length, that one key part of the reform process should be an overhaul of civil liability for law enforcement officers and their employers.

The key elements of these reforms should include:

(1) Vicarious liability, not limited by the qualified immunity available to individuals, for the employers of law enforcement officers sued for civil rights violations.

(2) Provide qualified immunity for employers of law enforcement officers from employment law remedies for discipline of civil servants based upon a good faith belief that an employee had used excessive force or otherwise violated someone's civil rights.

These two reforms would give employers of law enforcement officers a much greater incentive to hold their employees accountable, something that they are well positioned to do than the courts.

 (3) Establish a compensatory "takings" remedy that provides compensatory damages to anyone seriously harmed by the criminal justice system in a manner not incident to an ultimate conviction.

For example, a takings remedy might apply, without regard to government fault, if someone was charged with a crime and not convicted for their defense costs, loss of liberty while awaiting trial, bond charges, and other economic losses arising from the charges.  Similarly, anyone incarcerated pursuant to the conviction that was overturned would be entitled to compensation for their loss of liberty without regarding to the wrongfulness of the process that caused that conviction.  And, a takings jurisprudence would provide a compensatory remedy to anyone harmed by the use of force that would not have been justified in hindsight if everyone involved benefited from fully accurate information (e.g. cases where a law enforcement officer shoots and kills someone because the law enforcement officer sincerely believed he had a gun when he didn't actually have a gun).  Damages for loss of liberty from incarceration would be standardized in some way (e.g. $X per day).

This would provide justice in a manner much easier to prove to innocent people harmed by the criminal justice system.

Reforming Criminal Liability

Another useful step may be to create a new crime of excessive use of force causing serious bodily injury or death by a law enforcement officer, that is prosecuted in a manner that procedurally addresses the inherent conflicts of interest in the status quo approach, and that also recognizes that the level of culpability of overzealous or panicked law enforcement officers in these situations if often closer to that of criminally negligent homicide than it is to intentional murder.  In these cases, the standard might be closer to "use of force that a reasonable person under the circumstances would objectively believe to be inappropriate", rather than the usual standard for proof of homicide or assault.  A yet lesser criminal offense, perhaps a misdemeanor, might be established for failure to discipline law enforcement officers under your command for using excessive force as this is really just one more category of corruption.

Procedural reforms might vest enforcement of the crime against local law enforcement officers in a state attorney general's office or the United States Justice Department Civil Rights division, without resort to a grand jury in jurisdictions where that is permissible.  Prosecutors charged with enforcing the crime might also be vested with the authority to insist on lesser civil sanctions such as termination of employment, termination of law enforcement officer employment eligibility, civil fines, suspension without pay pending investigations, and placing local law enforcement agencies that are pervasively troubled in a federal or state receivership.

A criminal remedy for excessive use of force by bad cops that is more consistently applied and moderate in terms of sentence available, would be a better option than a criminal sanction that is theoretically available but almost never imposed.