Daily Journal Publishes Scott Davenport's Letter to Editor Repudiating Officer Indemnity Myth
April 1, 2015 -
Under the headline "Opinion misguided on officer idemnification," Daily Journal, a premier source of legal news and analysis in Southern California, has published a letter to the editor, written by Scott Wm. Davenport, the firm's general counsel. The content of that letter has been republished below.
Professor Joanna Schwartz recently wrote a guest column suggesting that law enforcement officers are unconcerned about possible adverse civil judgments when they are acting in the field. ["Police unfazed by legal liability," March 24, Daily Journal.] She suggested that because officers do not face the financial ramifications of a civil suit, the goal of deterring civil rights violations is unsatisfied. Schwartz even went so far as to question whether it is time to re-visit the doctrines of qualified immunity, municipal liability and the exclusionary rule. These opinions are misguided and do not reflect the realities of modern law enforcement.
The stark truth is that law enforcement officers often are called upon to make life-and-death decisions in a fraction of a second, under terrible conditions, and with incomplete information. They do not have the luxury of slow-motion replay of events from multiple angles from the safety of their office. When faced with a hostage situation involving a human shield, law officers are simultaneously concerned about numerous things: the safety of the hostage, the safety of their fellow officers, their own personal safety, and the safety of innocent bystanders who might be caught in the cross-fire. These thoughts are all running through the head of the officer as the perpetrator alternates pointing the barrel of the gun at the hostage and at the officer himself. As Oliver Wendell Holmes wrote, "Detached reflection cannot be demanded in the presence of an uplifted knife."
The belief that officers might act differently if they had more personal liability for civil judgments is belied by common sense. Responding to an emergency situation, officers are grappling with the most basic foundational blocks in the heirarchy of needs: self-preservation and the defense of others. There is simply no reason to believe that an officer would be affected by the possibility that, if he survives the encounter, he could face the potential specter of an adverse civil judgment.
Schwartz also appears to imply some sort of collusion involving the potential idemnification of individual officers. As a practitioner with more than 15 years of experience in this area of law, let me say this is never an easy decision for a municipality. Municipalities take a number of factors into account, including the conduct alleged, the size of the award, the officers' ability to pay, and the negative impact of a failure to indemnify on-the-line officers. These are difficult decisions driven in different directions by complex, competing interests.
For example, if a decision is made not to reimburse the officer in an attempt to deter other potential misconduct, the impact will be immediate. Officers, who put themselves in harm's way for the sake of victims, will be cast aside by the agencies who dispatched them. The officers may become less inclined to enter a dangerous building to search for a suspect or to protect a victim from sudden and immediate harm.
These complex realities have been side-stepped by Schwartz's narrative of institutional indifference to civil rights violations. Indeed, if her position were given currency, the most immediate impact would be felt by plaintiffs themselves who could find themselves with uncollectable judgments. Certainly, this would be contrary to the intent of Section 1983.