By Haidee Clauer (PO ’22)
Racism and anti-Blackness have played a long and persistent role in the history of the United States, from its founding to the present. The deaths of George Floyd, Breonna Taylor, Tony McDade, and Ahmaud Arbery—among countless others—as well as the national movement in response, demand our attention. This article is part of a series that seeks to explore and illuminate issues of racial justice, and in particular, to examine how racism often manifests in law and public policy. We invite you to join us and contribute, and we look forward to learning together.
“Oh it’s just a few bad apples…”
When we talk about systemic racism, corruption, and injustice in the police department, we are not only talking about the discrete cases in which violence bubbles up to the surface. We are looking at the whole system boiling below — what keeps it going?
From southern slave patrols, to corporate strike-breakers, to officers bribed to stuff ballots and intimidate voters, and much, much more, American policing was founded to enforce racism, economic inequality, and political corruption. Along the way, police have built up centuries of embezzlement, political corruption, intimidating protestors, sexual assaults, racial profiling, excessive force, killings, and war crimes.
What systems have sustained this violence? For the sake of order, our judicial, administrative, and legislative doctrines award extraordinary privileges and immunities to the police (who have minimal training, proven biases, and are overwhelmingly white, male, and highly hierarchical). This kind of order costs $100 billion and a public health crisis. It comes at the expense of transparency, community oversight, and constitutional rights. Do these ends truly outweigh the means? Should we still be investing in it?
Through close scrutiny of the unique protections we grant police officers — union contracts, internal investigations, indemnification, and qualified immunity — we can better understand and dismantle the systems that keep police departments’ racist, corrupt roots alive.
Part 1: The Fraternal Order of Police and Internal Investigations
Most of the opposition to policies promoting transparency and accountability in law enforcement does not come from civilians, but rather activism from the police themselves. Many of these policies are negotiated in collective bargaining agreements, statewide “law enforcement bill of rights,” or independent legislation by the “Fraternal Order of the Police” (FOP). The FOP is a huge organization made up of thousands of lodges, including local police unions known as “labor lodges.” The FOP employs full-time lobbyists for over 325,000 members (40% of current US law enforcement). In the past decade, the FOP and police unions spent millions of dollars on campaign contributions and lobbying. The FOP and auxiliary fraternal organizations have sponsored a bill to let police take unlimited budget surpluses, opposed a bill to counter racial profiling, condemned a Nike’s ad featuring Colin Kaepernick, and endorsed Donald Trump’s 2016 presidential campaign. They also once declared war on Bill de Blasio.
The FOP also works alongside the International Union of Police Associations, which has 100,000 members plus police units inside other powerful unions. Recently, the AFL-CIO board has condemned police misusing their union as a “shield from criminal conduct.” Other prominent labor unions have threatened to oust the IUPA from the AFL-CIO altogether. The key issue? Collective bargaining agreements.
Usually, unions use collective bargaining agreements to secure rights, safety, and benefits for their workers. But police negotiate contracts that minimize transparency, accountability, and procedural justice. Chicago police unions, for example, secured contracts that — until a recent state supreme court decision — guaranteed their misconduct records would be destroyed after five years. The police chief’s justification? Purging records had been protocol for 40 years (even explicitly violating a public records bill), and thus was far more justified than the “will of current sentiment.” Police unions operate to protect their officers by blocking reforms that increase transparency and accountability, as well as weakening disciplinary procedures. These protections against community oversight are hard to reconcile with the widely-advertised police oath promising to “always have the courage to hold myself and others accountable for our actions.” Several former police chiefs, plus a former FBI director, have criticized these protections as “corrosive” and police unions as “far too powerful.” Not just they are dangerous; decreased discipline and transparency directly correlate with increased police abuse.
The FOP has been notably vocal when it comes to internal investigations into police misconduct. They lobbied for a bill mandating “effective procedures for receipt, review, and investigation of complaints against officers, fair to both officers and complainants.” Sound too good to be true? The bill lets the FOP define “fair” investigations: by restricting how and when victims of misconduct can make complaints, limiting the severity of officers’ punishments, and granting officers even more advantages during investigations. The bill never made it to vote, but the FOP has nonetheless secured similar privileges in local departments nationwide. One sweeping report of police departments’ collective bargaining contracts found that nearly every city grants police advantages in internal investigations of misconduct — including disqualifying complaints exceeding a time limit, giving officers access to case information and other privileges during questioning, requiring cities grant officers paid leave during investigations, preventing past records of an officer’s misconduct from influencing how new ones are handled, and limiting the scope of discipline officers receive.
Even without the bill or codified collective bargaining agreements, police department culture is clouded by a “code of silence:” officers quietly covering up their peers’ misconduct. Especially in departments with police unions, officers allow their peers to continue, unpunished, through complaints of misconduct. In the last decade, over 2,500 officers were working with over 10 complaints made against them.1. One report found over 2,200 instances of dishonesty or false evidence through police investigations or trials, with 5,000 officers placed on Brady lists for lying or falsifying evidence. The recent killing of George Floyd exposed the scale of this code of silence in the Minneapolis PD, in which Derek Chauvin was handed a total of two letters of reprimand for at least seventeen (!) complaints of misconduct, including fatal force.
How important are complaints to victims of police misconduct or violence? Complaints submitted to local police departments are, by far, the most common action taken by victims of police violence. In over 12,000 local police agencies throughout the country, 85,000 officers were investigated for over 200,000 cases of recorded misconduct in the last decade. But those figures are just the tip of the iceberg. One Department of Justice survey found that municipal police departments dismiss over 90% of complaints, sometimes without providing justification. Moreover, these dismissals are racially biased; while most complaints are filed from non-white men, police departments are less likely to sustain complaints when the person who filed it is black. Through the early 1990s, when aggrieved citizens appeared at Los Angeles police stations to lodge complaints, they were frequently turned away or even threatened with arrest. And what happens to these complaints — sustained or not —afterwards? Over half of police departments’ collective bargaining rights authorize them to be destroyed, or otherwise barred from consideration in repeat cases. As police unions lobby to handle complaints without civilian oversight, the whole complaints process fails to empower (let alone listen to) public interests.
What’s at stake here? Complaints against the police could, and should, deter policing that goes against public interests by recording cases and trends police conduct, allow civilian-police engagement, and produce investigation reports that can be used to discipline officers or take them to court. How then, can complaints be taken seriously and handled fairly?
The Department of Justice has endorsed in-person mediation during complaint evaluations and police-community interactions. The cost and incompleteness of this kind of internal reform may be troubling to police abolitionists hoping to defund departments. In fact, some police leaders agree that it costs police departments in the long run; as a former NYPD deputy commissioner explained, “only an independent investigative body can allay public suspicions of the police and render a convincing exoneration of police who have been accused of misconduct.”
What would this look like? Take Claremont, California. Between 2015 and 2018, the Claremont police department recorded 9 complaints. All were exonerated. In 2019, of 5 total recorded complaints, two were exonerated and the rest are pending.2 No disciplinary action has been taken in specific response to any of these complaints.3 If you submit a complaint, it is investigated by the police chief. You might be invited to join three police commissioners on the Police Review Ad Hoc Committee to review whether the investigation was comprehensive (but not necessarily whether its outcome was fair). But any statements from this committee — even objections to the investigation — are “specifically excluded from the Public Records Act,” so no one else will ever know. Likewise, your complaint and any future one, by default, “cannot be disclosed to the public.” So, when all is said and done, have you been given any guarantee that records will be kept, trends monitored, and repeat offenders stopped from doing further harm? If you don’t get to sit in with the review committee, will you ever know it was investigated fully and fairly? Who do you go to if you aren’t satisfied with the outcome? I would hope that there’d be no evidence-tampering, records-purging, or undeserved leniency — but I’d argue that it would be a lot easier to trust 11 exonerations in a row if they were coming from an objective, well-explained, external party. A reliable complaints process requires unbiased (not police-led) investigations. Reliable departments need well-kept conduct records, plus an auditing team to analyze and address areas of improvement. And unreliable officers deserve impartial, comprehensive discipline.
External review boards are promising, with the potential to sustain 78% more complaints than internal investigations. Historically, they have been unpopular and unpowerful. Early civilian review boards, emerging in the 1960s, were polarized by anti-crime, anti-police sentiment, which garnered opposition from police unions and local officials (including then-mayoral-candidate Rudy Giuliani, who called the concept “bullshit”). Through the 90’s, the FOP continued to push back — once by screaming “kangaroo” to disrupt a review board meeting. A nation-wide 2016 report found only 144 police departments (of over 15,000 that existed at that time) had external oversight boards. Of these boards, only 35% were involved in investigations, only 6% could impose direct disciplinary action, and most had limited access to police records to begin with.4 Those authorized to conduct investigations were still only able to subpoena witnesses in 56 percent of cases, and records in 59 percent of cases. In California, for example, external review boards couldn’t even access the police complaints or internal affairs records they were created to analyze for most of the last two decades. In New York, an ACLU report found a review board ignored or corrupted by the police often enough to render it “a formality, at best.”
But external oversight boards are gaining traction. Cities without these boards have begun to adopt them, sometimes redirecting funds from internal investigations. Cities with weak ones are strengthening them. For example, Californians passed a bill to make police records more accessible in 2018 and a measure giving a Los Angeles external review board subpoena power in 2020. Cities are finding success through a plethora of oversight options including auditors, investigators, and review boards.
So what does this all mean? For one, it gives an obvious action plan: Civilian oversight means policing happens when and how the public wants it to. It means less privileges from the FOP, it means less police misconduct and excessive force. Sometimes, it can mean effective accountability without increasing police budgets.
But this also reveals a lot about the fundamentally flawed motives of the police. If police administrations were already protecting the interests of the public, it wouldn’t take policy change and civilian involvement to secure fair, accessible, and efficient police investigations. If police unions wanted to help their officers “protect and serve,” they wouldn’t help officers get away with illegal or unconstitutional behavior that neglects and harms their communities.
This begs another monstrous question: what are the police entitled to do? Undoubtedly, police have used their power to perpetrate centuries of injustice — but how much of it was (and still is) authorized by actual legal and judicial doctrine?
Part 2: Qualified Immunity and Indemnification
In Part 1 of this article, I argued that internal investigations and collective bargaining power from the FOP work against the police oath to “always have the courage to hold myself and others accountable,” and “never betray” public trust. What about another part of the oath — to “always uphold the constitution?” Shouldn’t failing to uphold the constitution be inexcusable, even punishable, for police officers?
According to national doctrines of qualified immunity and indemnification, no. A 2020 Reuters report concluded that qualified immunity “has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.” 300 law professors want congress to abolish it. So what is it, and where does it come from?
The earliest analogs to qualified immunity can be found tangled up in common law from the late 1800s. Because sovereign immunity prohibits citizens from filing suits against governmental agencies, police officers would be sued as a proxy in order to hold their agencies accountable for any unlawful policies and malicious officers. Those suits deliberated on the objective legality of the officer’s actions to secure redress for victims. The judiciary was, then, accustomed to hold law enforcement officials strictly accountable for any illegal or unconstitutional behavior, just like it would for other citizens. Even when sympathizing with order-following officers, the Court asserted (and then reaffirmed) the “necessarily strict role the federal courts must place in enforcing official liability,” — and assumed a law enforcement officer should know laws well enough to break them “at his known peril.”
Unlike other citizens, however, officers had a second chance — if they could show that they were just following orders, congress would cover the fine. This legislative indemnification also made the Court’s strictness more palatable to judges, who could rule against officers whose illicit conduct was commanded by their government agency and not worry about unfair punishment to the individual officer. As the Marshall Court reasoned, “as the government in such cases is bound to indemnify the officer, there can be eventual hardship.”
Reconstruction-era practices dealing with official immunity were consistently balanced between the courts and legislature. If there was indeed a violation of rights, the courts would identify and impose liability for it. For the victim, this system would prioritize the arguably most important needs to pay for the damages and codify judicial condemnation of any future similar rights violations. For the officer, it would encourage close understanding and obedience to the laws they were supposed to enforce. For the judicial branch, Marshall Court affirmed the fundamental purpose of the judiciary to decide the constitutionality of police actions. For the legislative branch, the ability to indemnify even steep monetary damages affirmed that the legislative body is constitutionally responsible for the fisc.
So the courts already had a framework to crack down on illegal policing, both commanded and uncommanded, when congress enacted the Civil Rights Act of 1871. As a whole, this act aimed to reaffirm the 14th-Amendment rights of black Americans, especially as klan activity terrorized and intimidated states and local courts to the point that they were unwilling or unable to enforce equal protection under law.5 The act included §1983, which authorizes anyone in the US, whose rights, privileges, or immunities secured by the Constitution and laws” were violated by someone acting “under color of” governmental protocol or law, to sue for redress. Since a ruling in 1961, this also extends to local officers and entities.
Though §1983 was meant to authorize lawsuits against government officer misconduct, the judiciary has limited these suits to wording of the statue — when an officer acts “under the color of” law. This phrase was intentionally chosen through drafts of the statute to specify misuse of title or privileges through acts that officers were not commanded. So, instead of ignoring the question of whether or not the officer acted against orders and leaving it up to congressional deliberation (via indemnification), §1983 required the courts to consider this question themselves. Their answer? Qualified immunity.
Qualified immunity essentially provides a test to see if an officer acted under color of law. If not, it lets courts dismiss “frivolous” §1983 cases that could drain time and energy from law enforcement. As it currently stands, qualified immunity allows §1983 lawsuits to be summarily dismissed unless the plaintiff can prove there has been both 1) been a violation of a constitutional right; and 2) that this right was clearly established in both police codes and judicial precedent.
That current qualified immunity doctrine comes from a 2017 case in which three officers shot and killed an innocent man named Samuel Pauly at his home in the middle of the night.They lacked a warrant or probable cause, surrounded Pauly’s house with guns drawn, and did not identify themselves as police when Samuel and his brother drew their own guns thinking (perhaps correctly) they were being attacked. However, the court granted all three officers qualified immunity, citing that even though they had violated Pauly’s rights against excessive force, there was no case similar enough to clearly establish judicial precedent.
Similarly, this standard has justified granting qualified immunity to one officer who strip-searched a 13-year-old schoolgirl suspected of carrying Ibuprofen, officers who stole $225,000 during a home invasion and then perjured documents about it, and an officer who slammed a swimsuit-clad woman head-first onto a sidewalk — all because there was no precedent that had “clearly established” that police shouldn’t be doing it. This deviates pretty far from the court’s historical assumption that law enforcement… well… knew the law.
In fact, legal scholars have argued that, disregarding the common law analyzed in this piece, qualified immunity deviates so far from any other judicial precedent or legal backing that it is is only justified by stare decisis, or even flat-out unlawful. Nonetheless, the Supreme Court has upheld it. The Court reviews five to six qualified immunity cases annually — making it the most closely-overseen doctrine besides habeas. And these reviews tend to favor granting qualified immunity; they dismiss writs to appeal circuit courts’ grants of qualified immunity, while summarily reversing lower courts’ decisions to hold officers liable.6 This bias affects lower courts, which intuitively don’t want their decisions refuted by the supreme court. As William Baude explains, “the current docket signals to lower courts that they should drift toward [granting] immunity.” Plus, they’re given unusually numerous chances to grant it; though officers usually request qualified immunity before cases begin, it can be invoked during the trial and even in appeals immediately afterwards.
And increasingly, they do. The Reuters study of excessive force cases found that, since 2005, over half granted qualified immunity in favor of the official, with that percentage slowly rising through 2019. Qualified immunity gives officers an advantage in the many understudied misconduct settlements; they could threaten to take unfavorable settlements to court, where they could plausibly be granted qualified immunity from any redress for the victim. The study also found an increasing percentage of these cases decided without resolving whether there was excessive force since a 2009 ruling, which held that courts could, when granting qualified immunity in a case lacking “clearly established” precedent, entirely ignore the question of violated rights. As the court has noted, this 2009 standard can lead to ‘constitutional stagnation;’ because courts infrequently resolve cases without finding established legal precedent, an increasing portion of qualified immunity cases are decided without resolving whether the act was a violation of rights. By granting immunity for a potentially unlawful act without ruling it unlawful, the courts could effectively allow it to be repeated indefinitely.
As qualified immunity has prevented victims from getting any form of redress, indemnification practices have been redefined by the courts and police administrations, who use it to redirect public budget funds to cover officers’ legal fees and, when qualified immunity is not granted, monetary damages. Larger municipalities’ police agencies may resolve misconduct cases several times each week, but it is extremely rare for individual officers to be held financially accountable. Of these settlements’ total awarded damages, individual officers paid a fraction of a percent in police departments located in large cities, and even less in smaller cities and towns. A survey of 2006-2011 settlements from 44 largest US municipalities found that “officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs’ favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases.” Not a single officer was required to contribute in non-civil rights cases (motor vehicle crashes, employment discrimingation, etc). Los Angeles is especially guided by this doctrine of indemnification of police officers; of over $90,000,000 paid out by LAPD and the LA Sheriff’s dept. From 2006-2011, LA reported charging officers a total of $300 — which was awarded in a single punitive damages case an officer who, due to a complication, never paid it.
“So, in eighty-one jurisdictions, over a six-year period, no officer paid a nickel to satisfy punitive damages awards in §1983 cases.” (Schwartz)
So, even though qualified immunity strictly withholds judicial punishment to officers found to have clearly deviated from their institutional authority, they are still virtually guaranteed indemnity to relieve them of individual liability. Rather than burdening officers with any financial liability, these cases burden citizens who not only are subjected to misconduct, but who also pay the taxes that literally fund their opponents in court.7
All sorts of government entities indemnify their employees — are modern police departments treated any differently? If the US government hires you to deliver elemental mercury, federal code guarantees to “hold harmless, defend, and indemnify” you, “in full,” if you get taken to court for causing property damage, personal injury, or even death. But to secure the indemnification funds, you are obligated to notify the Secretary of Energy in 30 days with the relevant records and proof of damages. The same is true for any other government contractor — indemnification requires you promptly provide the government all relevant proof of the claims, plus any other records if asked.
Historically, law enforcement had to jump through the same paperwork and oversight; antebellum indemnification was granted 60% of the time, based on well-reasoned petitions brought by the officer through appropriations bills that explicitly explained why the officer’s conduct was in lawful obedience to their government agency. But modern indemnification happens with unmatched and unprecedented inconsistency. Today, indemnification for police officers is treated as a de facto judicial or administrative right; indemnification across the nation’s individual municipalities can vary from being hotly contested in court, decided by the department before trial, or left unresolved for police agencies to interpret even after the juries’ final verdicts.
Moreover, indemnification for §1983 cases contradicts legal and judicial doctrine. Indemnification, as authorized by 1943 statute, may be granted to any government employee acting “without actual malice and in the apparent best interests of the public,” as well as “within the course and scope of [their] employment.” But in §1983 cases, officers have both violated constitutional rights (let alone interests) of the public and the “clearly established” regulations of their employment; otherwise, they would have been granted qualified immunity. Further, the Supreme Court has consistently assumed that officers themselves are held financially responsible in many kinds of misconduct cases. In addition to being a shocking, unchallenged, and perhaps darkly ironic misappropriation of funds, indemnification is a huge loophole that topples any hope of qualified immunity “striking a balance” between officer accountability and unnecessary punishments or lawsuits that interfere with their work.
The “clearly established” test is another oversight of qualified immunity. Consider if police were indeed held to explicit laws, codes, and handbooks. Then, intuitively it would be harder for courts to use this test to dismiss §1983 cases. In fact, qualified immunity would even become a tool to further limit police policies — as it did in one case, which not only denied an ICE detention center officer qualified immunity after he detained a suspected illegal immigrant for three days after bail was posted, but also banned this “unlawful seizure” in county jails. Moreover, without qualified immunity to rule on the constitutionality of established protocol, courts couldn’t consider them at all. In addition to sovereign immunity barring lawsuits against federal agencies, the judiciary has severely limited suits against police departments, especially in City of Los Angeles v. Lyons. Quoting the dissenting opinion in that ‘83 case, “… if the police adopt a “shoot to kill” policy or a policy of shooting one out of every ten suspects, the federal courts will be powerless to enjoin its continuation….The federal judicial power is now limited to levying a [money damage] toll for such a systematic constitutional violation.” But even this potential silver lining to qualified immunity is unrealistic; today’s policing is far from clear. Not only are police manuals written individually by departments’ internal administrations, but they are interpreted in a vast, subjective “gray area” of officer discretion.
Hopefully, a new surge of increasingly–supported legislation wll excise some of the worst of this gray zone. Nationally, the House passed a democrat-backed bill that would ban chokeholds, prohibit no-knock warrants in federal drug cases, support “policies and procedures designed to eliminate racial profiling” and eliminate any that allow or encourage it. It would also limit qualified immunity, banning courts from granting the basis of the “good faith” or “clearly established” clauses. This would mean that if any §1983 suit finds evidence of a constitutional violation, it cannot be dismissed — guaranteeing victims a chance at redress and potentially stopping the “constitutional stagnation” problem. Passing §1983-congruent legislation to actually guarantee redress when officers violate all rights, even without acting under the color of law, might do the same.
Legislation should be used to dismantle unfair indemnification, too — limiting it to officers following protocol, requiring some governmental authorization, mandating a paper trail. We should outlaw internal investigations sans-oversight, and punish the perjury made rampant by the police code of silence. But why stop there?
On my honor, I will never betray my badge, my integrity, my character or the public trust. I will always have the courage to hold myself and others accountable for our actions. I will always uphold the constitution, my community, and the agency I serve.
It’s hard to find a single phrase in this widely-used oath justifying (or even allowing) internal investigations closed from oversight, the FOP’s uncontrolled and hypocritical lobbying, qualified immunity that authorizes continued constitutional violations, or indemnification that allows officers to disobey their orders with impunity.
But this decades-old oath is not even the highest mandate of police power. American police power was outlined by a federal government that chose to ignore it’s racism and corruption. At the turn of the 20th century, bribed officers were extorting the “political contributions” of robber barons and politicians to harass and arrest political rivals, intimidate voters, and permit gambling and prositution rings. And still, amidst all this violence and corruption, the Court held that police power supersedes individuals’ liberties when reasonably enforcing legislation to protect public health and safety. Even a half-century earlier, as the police departments were bribing, drinking, and attacking non-white communities on their way to prominence, the Court reaffirmed states’ right to police power — “the government’s power to enact such regulations for the good and welfare of the community as it sees fit, subject to the limitations that the regulation be both reasonable and constitutional.” This police power, Justice Shaw wrote, is meant to not only protect the public welfare, but to do so by a “definite, known and authoritative rule which all can understand and obey.”
Upholding the constitution, protecting the health, safety, and welfare of their communities, and following clear, reasonable protocols that are true to actual law. The job description of a police officer doesn’t just include these things, it fundamentally is these things. Everything else — when and where and how they use this power — is the result of someone’s decision along the way, even if the Court turns a blind eye.
Police power was ignited, ready to boil over with no lid to limit the damage it would cause — especially to labor unions, immigrants, and non-white Americans. But even the Court’s first definition of police power was an open flame ignited with the inherent bias of its authors; the Court repeatedly disregarded rampant police corruption8, and Justice Shaw later authorized school segregation.
Across the country, we cannot put off reckoning with a force, 800,000 strong, that defies our constitution, our rights, our laws, and our attempts at oversight. We never have, and never will, extinguish police-perpetrated injustices by covering them up through indemnification, internal investigations, or freely-given immunities.
But we can turn off the flame. We can have order that is not built to maintain hierarchical power structures or socio-economic inequality; this reality predates and could outperform police. We can radically redefine police power; in some places we already have. We can do all of this and more. Our constitution, our legal codes, and most of all our communities depend on it.