Should Tort Law Care About Police Officers?

Abstract

Should police officers be able to file tort lawsuits for injuries that they suffer while on duty? In this article, written in response to Professor Sarah L. Swan's The Plaintiff Police, Professors Ellen M. Bublick and Jane R. Bambauer contend that racial equality is not served by complete immunities for civilian misconduct any more than “law and order” is served by complete immunities for police officers who abuse their power. Rather, they argue that the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including people wrongfully injured while employed as police officers. Beginning with a review of recent appellate opinions in suits filed by police, Bublick and Bambauer outline the types of actions that would be eliminated by a proposed ban on police officer injury suits. They next examine police suits through the popular, if inaccurate, frame that civilians can obtain virtually no civil remedies based on police misconduct. From the baseline of actual suits, Bublick and Bambauer argue that civil enforcement is valuable to hold both civilians and officers accountable for the unjustified harms that they cause to each other.