About a quarter of the contracts examined provide specialized indemnity clauses. These clauses require municipalities to be financially responsible for defending officers who have been sued for conduct committed while on duty. They also frequently require municipalities to pay the costs of any judgment against an officer. Thus, should an officer be found to have committed wrongdoing, it is often the city, rather than the officer, that is on the hook for the associated damages.
Such damage awards can be catastrophic. From 2015 to 2018, Detroit paid $19.1 million in police misconduct settlements, including two settlements arising from unlawful shootings, which totaled approximately $1.4 million.[18] In 2020, Detroit paid another $75,000 for the wrongful shooting of a dog killed during a drug raid.[19]
Settlements of this magnitude are not limited to large cities. The city of Euclid, Ohio, settled a case involving the tasing and pepper spraying of a subject for $475,000.[20] Euclid has a population of only 47,456. Jackson, Tenn., a city with a population of roughly 67,000, paid out a settlement of more than $1 million for claims relating to a wrongful detention in 2020.[21] Even cities as small as Sitka, Alaska, which houses fewer than 9,000 people, can pay out large sums. It paid out a $515,000 settlement in 2020 for a sexual harassment complaint.[22]
These indemnity clauses, in other contexts, can be reasonable. To attract and obtain top quality candidates, it is important for municipalities to assure officers that they will not be exposed to financial ruin if sued over allegations that ultimately prove baseless. In the context of policing, however, there are already extensive legal protections an officer enjoys due to his or her special status as a member of law enforcement. As a matter of federal law, officers enjoy what is known as qualified immunity for the acts they take in their official capacity.
For an officer to be found civilly liable for his or her official acts despite their qualified immunity, that officer’s actions must have violated a constitutional right that has been clearly established. This means that, at the time the officer alleged violated a citizen’s constitutional rights, the law was sufficiently clear that any reasonable officer would understand that his or her actions were unconstitutional.[23] The burden for overcoming qualified immunity is high, as a plaintiff must show that “[t]he contours of the right [are] sufficiently clear that a reasonable officer [would know] that his conduct was unlawful in the situation he confronted.”[24] Thus, qualified immunity protects any officer who is not plainly incompetent or chooses to “knowingly violate the law.”[25]
This protection largely renders officers immune from civil lawsuits, particularly those that are of questionable merit. But an officer who is found to not enjoy qualified immunity as a matter of law will necessarily have engaged in conduct that a reasonable officer should have known was unconstitutional. It is not appropriate for taxpayers to cover the legal costs associated with these actions.
It is a matter of reasonable debate as to whether municipalities should reimburse officers for legal claims against them that are proven unfounded. What should not be a matter of debate is whether a municipality should be forced to use taxpayer dollars to pay for damages when an officer has been found to have acted in a blatantly unconstitutional manner. To protect the taxpayer, legislators should make such clauses a forbidden subject of bargaining or limit their application to only those costs an officer faces when defending against a claim that is ultimately unsuccessful.