Bankruptcy Risk for Police Officers
by Jeff Harrison
As a law enforcement officer, it’s time to understand your risks of going bankrupt from an on-duty lawsuit. There are many misunderstandings of the so-called “Protections” officers think they have. SPOILER ALERT - You are extremely vulnerable now and getting more vulnerable everyday.
Qualified Immunity
This is the biggest myth in the law enforcement industry. Qualified Immunity does NOT mean Police Immunity. You are NOT immune from being sued by anyone. The confusion comes from the word “Qualified” in Qualified Immunity. You do NOT “Qualify” because you are a law enforcement officer. The word “Qualified” means an officer's actions must “Qualify” for “Immunity” by a judge. If a judge feels an officer’s actions “Qualify” for “Immunity” then the officer will not go to trial. However, if the judge thinks the officer doesn’t “Qualify” for “Immunity” then they will go to trial. Police Officers must perform at the high standards set in the Constitution. There is NO shield or protection from the Constitution for any government official. Officers are denied Qualified Immunity every single day. Below are links to articles of law enforcement officers denied Qualified Immunity and went to trial.
Federal judge denies immunity to Aurora officers in shooting death lawsuit
COURT REJECTS QUALIFIED IMMUNITY FOR OFFICERS WHO SHOT WAYNE JONES 22 TIMES
Court Denies Qualified Immunity To Cops Who Beat An Innocent Man To Death
Police Officers Denied Qualified Immunity In Police Brutality Civil Rights Case
Qualified Immunity Denied Based on Dispute About Material Facts
Sixth Circuit Denies Qualified Immunity for Officers in No-Knock Home Entry Case
Deputy sheriff loses qualified immunity protection from false arrest lawsuit
Dallas officers don’t have qualified immunity in Tony Timpa case
Police do not have an automatic right to qualified immunity, court rules
Qualified Immunity Denied To Officer Who Tased Man In The Genitals
Qualified Immunity Defense Rejected in Case Involving Police Shooting
Judge denies qualified immunity for Sheriff, deputy in 2017 shooting
FIFTH CIRCUIT DENIES IMMUNITY FOR OFFICER IN ARREST OF MAN TAKING PHOTOGRAPHS ON TRANSIT PROPERTY
Tenth Circuit Affirms Denial of Qualified and Sovereign Immunity Defenses
Jury Will Hear First Amendment Rights Case after Eleventh Circuit Denial of Qualified Immunity
I think you get the point.
Personally Liable 100%
Law enforcement officers are 100% personally liable when they deprive an American of their Constitutional Rights. It never falls onto your employer. Let me say this another way….the police department or municipality is never liable for your actions. I can already hear you saying, “That’s not true. An employee is only doing their job and the company is liable.” Yes, in the private sector that is true. An employee in the private sector transfers liability for a negligent error or omission to their employer because it’s implied that the employer asked the employee to do something. For example, an employer asks an employee to dig a hole and it cuts the power off for a restaurant next door. The restaurant can sue the company that employed the worker for the lost earnings. The legal term for this is Respondeat Superior. This is Latin for “let the master answer”. Law enforcement officers cannot transfer liability to anyone or any entity.
When a citizen feels their Constitutional Rights have been violated they can sue the individual law enforcement officer under a Section 1983. If it is found that the individual officer did violate an American’s Constitutional Right, the officer is 100% responsible for anything the judge places on them. The same citizen can also sue the municipality under a Section 1983 which is called a Monell. In this case, the citizen needs to prove that the municipality was responsible for policies or training that caused the law enforcement officer to take away an American’s Constitutional Rights. The U.S. Supreme Court decided in Monell v. Department of Social Services that Congress intended for Section 1983 to impose liability on a municipality for its “own actions” but not for the “acts of others”. Therefore, a municipality or police department is not vicariously liable for the actions of law enforcement officers, but municipalities can be held directly liable if their policy or training caused the deprivation of Constitutional Rights.
Law Enforcement Officers can never transfer liability for their actions to anyone or any entity. You are 100% personally liable.
Indemnification
Let’s imagine that you are a law enforcement officer that was denied Qualified Immunity, sued under Section 1983 and now liable to pay a financial judgment. Now what do you do? At this point, there is no law that says anyone is responsible to pay except the officer with the judgment. What will happen is the officer will ask the municipality to pay their judgment. History has shown that most of the time the municipality voluntarily pays the judgment with tax dollars even when they have zero legal liability to pay a dime. Of course, this completely goes against the intended purpose of Section 1983 which is to enforce an American’s Constitutional Rights being violated by an individual or public entity, but that’s another subject altogether. In some states and cities they will have either a statute, policy or contract with the police union to indemnify officers. However, this is not a 100% guarantee of indemnification. Here are some examples -
California has a statute called Government Code Section 825 that will pay Section 1983 judgments for a law enforcement officer. However, Los Angeles County Sheriff’s Deputies David Chang, Anthony Pimentel and Kris Cordova were all denied indemnification by Los Angeles County and were responsible for the entire $451,086.47 judgment. Right about now you are thinking….wait a second the County has an obligation to pay this judgment under Section 825. Here’s the twist - Section 825 has subsection 825.2 that states the County has the right to not indemnify these officers because they acted in actual malice, corruption or actual fraud. The three officers sued the County saying they were owed indemnification but the court ruled that Los Angeles County was not obligated to pay the three officers $451,086.47 judgment. It was 100% on Deputies David Chang, Anthony Pimentel and Kris Cordova to pay.
Stephen Todd, Chicago Police Officer for 18 years, was sued under a Section 1983 by Glenn Weeks for excessive force and unlawful detainment. Weeks was awarded a $31,967.02 judgment that Todd was 100% responsible to pay even though Illinois has a statute to indemnify law enforcement officers. Todd ultimately filed for bankruptcy and I go into that in more detail below.
Contributing to a settlement or judgment happens as well. Many places will make the law enforcement officer pay a portion of the settlement or judgment. It can range from $300 to $25,000. February 2022, Brooklyn New York officer, Vincent D’Andraia, was required to contribute $3,000 to a $375,000 settlement for violating a protester’s Constitutional Rights at a George Floyd protest in 2020.
There are also cities that have statutes that claim they will never indemnify any law enforcement officer. The reality is municipalities have zero legal obligation to pay a settlement or judgment for any law enforcement officer. Even if they have a statute, policy, contract with a police union to indemnify that is not a guarantee. When a judge and jury find an officer violated an American’s Constitutional Rights, the judgment is on the law enforcement officer personally 100% to pay. If the municipality uses tax dollars to pay it, they are doing that voluntarily and without the consent of the taxpayers.
Bankruptcy
Right about now you are thinking - “Ok, I understand that Qualified Immunity is not a given which could get me into court and yes, I understand that I’m personally liable 100% for my actions and I understand that the municipality has no legal liability to pay my judgment. What’s the big deal because I can just file bankruptcy and wash my hands for this entire financial mess.” I hate to throw cold water on this “Solution” but a Section 1983 judgment against an individual is nondischargeable. The Bankruptcy Code contains an exception to discharge for debts “for willful and malicious injury by the debtor to another entity or to the property of another entity.” In other words, you are going to pay it no matter what. You will have a payment plan set up or the court will garnish your wages. Either way you are paying.
Remember the Chicago Police Officer, Stephen Todd, with his $31,967.02 Section 1983 judgment to Glenn Weeks? He tried to go bankrupt to wipe out this debt to Mr. Weeks. They went to Court and Todd was denied the ability to discharge his debt to Weeks. The Court garnished Todd’s wages for years until his debt to Mr. Weeks were paid in full. Glenn Weeks v. Stephen Todd No. 86 B 5705
Talia Thornton was a prisoner in Philadelphia where correctional officer, Daryl Watson, was found liable under Section 1983 of treating Thornton with excessive force and subjecting her to cruel and unusual punishment. Watson tried to discharge his judgment debt to Thornton through bankruptcy. That was denied by the Court and Watson had his wages garnished for years until his debt to Thornton was paid in full. Thornton v. City of Philadelphia No. 04-2536
Conclusion
Law enforcement officers are extremely vulnerable now and getting more vulnerable everyday. You can accept the true risks of your situation or bury your head into the sand. Either way the world is moving forward. Law enforcement liability insurance policy creates a mechanism for officers from around the country the ability to support each other by sharing in the financial risks together. It is Collective Responsibility within the law enforcement industry that will eliminate officers' fear of going bankrupt from a civil lawsuit.