Secret Police and the Mysterious Case of the Missing Tort Cases

Abstract:     
In this Essay, we consider the mysteriously conflicting evidence on whether civil suits against the police can have a meaningful effect on police misconduct. The limited evidence points in two directions. Legal and practical barriers to successful tort claims, joined with the near absence of successful plaintiff verdicts affirmed on appeal in reported judicial decisions, suggest that tort suits have no regular effect on police behavior. Lawyers also talk and act as if successful tort suits against the police are rare events. On the other hand, numerous news accounts describe recoveries by plaintiffs against police departments, although the stories normally do not describe the particular police misconduct at issue or the terms of any settlements. Government litigation statistics also point to a healthy number of successful tort claims against the police.

What explains the co-existence of signs of litigation success, alongside an enduring belief among judges and lawyers that the suits mostly fail? We believe that most of the litigation successes for plaintiff involve settlements, and many of those settlements include secrecy agreements that prevent the parties from releasing any information other than the fact and amount of the payment. After surveying the arguments for and against secrecy agreements in civil litigation generally, we point to the reasons that make secret settlements especially objectionable in suits against police officers and departments. We then propose legislation that would place such secret settlements off limits, and would compel regular public reports about the outcomes of such litigation. The reports would include critical information about who pays the judgment and what corrective actions are taken in response to the lawsuits against the police. When such information becomes a regular feature of news accounts and public debate, it will become possible to answer the mystery of whether tort claims already change police behavior.

Keywords: Criminal Procedure, Civil Rights, Section 1983, Police Misconduct, Remedies

JEL Classifications: K14, K41

Accepted Paper Series