121 Pages Posted: 24 Jul 2013 Last revised: 14 Jun 2014

Date Written: June 2014

Abstract

This Article empirically examines an issue central to judicial and scholarly debate about civil rights damages actions: whether law enforcement officials are financially responsible for settlements and judgments in police misconduct cases. The Supreme Court has long assumed that law enforcement officers personally satisfy settlements and judgments, and has limited individual defendant and government liability in civil rights damages actions — through qualified immunity, municipal liability standards, and limitations on punitive damages — based in part on this assumption. Scholars are ambivalent: some believe officers almost always satisfy settlements and judgments against them and others contend indemnification is not a certainty.

In this Article, I report the findings of a national study of police indemnification. Through public records requests, interviews, and other sources, I have collected information about indemnification practices in 44 of the largest law enforcement agencies across the country, and 37 mid-sized and small agencies. My study reveals that police officers are virtually always indemnified: during the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments — even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct. After describing my findings, this Article considers the implications of widespread indemnification for qualified immunity, municipal liability, and punitive damages doctrine; civil rights litigation practice; and the deterrence and compensation goals of § 1983.