Government may not be able to legislate violent criminals away, but a San Fernando Valley congressman is taking aim at another danger he says street cops face every day--lawsuits that threaten to wipe them out financially.
Rep. Carlos J. Moorhead (R-Glendale) insists that he is as opposed to police brutality as everyone else. But he says that fear of lawsuits--and the financial ruin they could bring to officers’ families--is causing many in law enforcement to think twice about confrontations.
“It is not in the best interest of society if police officers get timid,” Moorhead said. “If they think they are going to lose everything they own in a lawsuit, they are going to get timid.”
At the urging of Los Angeles County Sheriff Sherman Block and other law enforcement officers, Moorhead has introduced a bill in the House that would make it far tougher for federal court juries to levy punitive damages against individual officers. It would also limit such awards to $10,000--roughly one-third of the average police salary nationwide.
There is currently no cap on such awards, and in some cases they have reached into the hundreds of thousands of dollars. Most of the time, however, local governments step in and pick up the officer’s share of the cost.
Civil libertarians and attorneys who specialize in police abuse cases condemn Moorhead’s “Law Enforcement Officers Civil Liability Act of 1995" as an ill-advised proposal that would only serve to let lawbreaking officers off the hook.
“It’s too bad that Congressman Moorhead has decided to become a shill for bad law enforcement,” said Stephen Yagman, a Venice attorney who specializes in police brutality cases. “If it passed, and I doubt it has a chance, it would take away any real specter of deterrent to police misconduct.”
As for officers thinking twice about confrontations, Pasadena attorney John Burton said that is precisely what they should be doing.
“We don’t want them out there thinking they can do whatever they want,” said Burton, who frequently takes on police officers in court. “The fact that police would like immunity when they violate people’s civil rights is hardly shocking.”
But Moorhead contends that it is the general public that will suffer if society clamps down so hard on officers that it interferes with their jobs.
“Sometimes [officers] go too far. We know that,” said Moorhead, emphasizing that his bill still allows victims to recover compensatory damages plus $10,000 in punitive damages from rogue officers. “These are people with very dangerous jobs out there fighting for us in the streets. . . . These lawsuits are bound to deter the aggressiveness in which they carry out their jobs.”
Los Angeles City Atty. James Hahn says fear of such lawsuits is one reason behind the decline in arrests in the Los Angeles Police Department.
“Unless officers have to get involved, they figure why should they risk their house and their savings,” said Hahn, who supports the bill.
Despite the bill’s controversial nature, it will at least receive a hearing because Moorhead is the chairman of the courts subcommittee that will give it first consideration. Its fate, however, is uncertain because Moorhead has yet to circulate the idea among his colleagues for support.
Block, who has been cited in police abuse cases himself as head of the Los Angeles County Sheriff’s Department, said he suggested the legislation because he is concerned that today’s litigious climate is interfering with police work.
“The average cop is less apt to react to instinct and gut feeling because what they have in the back of their mind is, ‘I could face a big lawsuit,’ ” Block said. “They are faring more cautiously--I think to the detriment of the safety of the community.”
In the most recent example, a Superior Court jury last week awarded $15.9 million to 36 people who were beaten or arrested by sheriff’s deputies who rushed a Cerritos bridal shower wearing riot gear. The jury is now working on its second mission: to determine whether individual deputies must pay punitive damages.
Such a state court case would not be affected by Moorhead’s bill, but the proposal would apply to the civil rights cases that are regularly filed against officers in federal court.
Block says the changes proposed by Moorhead will not make officers immune from federal civil suits.
“Ten thousand dollars can be a pretty stiff jolt out of someone’s paycheck,” Block said. “But it won’t wipe them out, ruin their family and make them lose their house.”
The concept is supported by a variety of police groups--from the Riverside Police Officers Assn. to the National Assn. of Police Organizations, a national group that endorsed the bill at its convention in St. Louis last weekend.
The Riverside police union is specifically concerned about a federal court case from earlier this year in which a jury ordered four Riverside police officers to pay $26,183 to a burglar who was shot in the back in 1990 while fleeing the scene.
In a recent memo to union members--sent out before a judge overturned the ruling on appeal--union President Jack Palm urged officers to consider their families’ financial security before initiating any police action. He also contacted Rep. Ken Calvert (R-Riverside) about the case, and Calvert has since signed onto Moorhead’s bill as a co-sponsor.
“There’s a saying among police officers,” Palm said, “ ‘If you haven’t been to federal court at least once, you will soon.’ ”
The effort to cap punitive damages follows some contentious court decisions in recent years that have exposed police officers--and even members of the Los Angeles City Council--to personal liability for police work that was ruled beyond the bounds.
In one high-profile case, a woman sued the LAPD’s elite Special Investigations Section for killing her husband in 1990 as he fled a McDonald’s in Sunland that he and three other men had robbed. A jury awarded relatives of the robbers a total of $44,042 in punitive damages against then-Chief Daryl F. Gates and nine members of the special unit.
Jurors said the damage award was intentionally low because they wanted the chief and his officers to pay it out of their own pockets.
But, as it does in many such cases, the City Council voted to pay the award on behalf of the officers.
That decision prompted Yagman, the plaintiff’s attorney, to file suit against council members themselves, saying that their paying of such punitive damages eliminates the deterrent for officers not to overstep the law.
The city argued that elected officials are immune from such lawsuits but, in a series of rulings that eventually reached the U.S. Supreme Court, federal judges ruled that public officials can be sued individually when they vote to pay punitive damage awards for police officers found liable for brutality.
Although the council was subsequently extricated from the suit, Moorhead’s bill seeks to prevent elected officials from being dragged into such matters in the future. It would explicitly exempt government officials from liability if they decide to pay officers’ punitive damages out of public coffers.
Plaintiffs could recover damages from officers in Moorhead’s bill only to punish or deter conduct “specifically intended unlawfully to cause serious personal injury” or “engaged in with flagrant indifference to the rights of the injured party and with an awareness that such conduct is likely to result in serious personal injury and is unlawful.”
Under current rules, plaintiffs must show that officers showed reckless indifference to their constitutional rights. The bill would increase the evidentiary standard from “preponderance of the evidence” to “clear and convincing evidence,” making it harder to prove such cases.
In addition to the $10,000 limit on awards, the bill would cap the attorney’s fees that could be awarded in such cases to one-third of the monetary damages.
Attorneys say the bill, if passed, would probably prompt them to file more police brutality cases in state court to avoid the federal court restrictions, limiting plaintiffs’ legal options. Plaintiff’s attorneys said that the measure would force them to turn down many of the police abuse cases they now litigate.
“It will mean that only cases with very, very substantial damages will be litigated,” said Burton, past president of the Police Misconduct Lawyers Referral Service in Los Angeles. “All of the cases of people being roughed up or arrested without probable cause won’t go to court.”
Currently, attorneys who win such cases submit legal fees to the judge and court-approved fees are added to the judgment. In many smaller cases, the attorney fees are higher than the judgments themselves.
Moorhead says he intends to hold hearings on the issue in November and seek input from supporters and opponents. National police groups are surveying their members for information on the extent of the personal liability problem nationwide.
In California, a statute mandates that government entities pay the compensatory damages levied against officers if the action was job related.
But in the case of punitive damages, governments can decide whether to pick up an officer’s liability.
Los Angeles city officials say they do not have a policy of always indemnifying officers for court-ordered damages. In the past decade, according to records, the city has paid punitive damages in 11 excessive-force cases and settled 18 others out of court, leaving 20 cases in which the city refused to represent officers named in suits.
If an officer’s actions take place off the job, it is more likely the city will not back up the officer.
Last year, for instance, the City Council agreed to pay $4.5 million to a teen-age girl molested by an officer who was off duty at the time. After agreeing to pay the settlement, the city considered filing a lawsuit against the officer to recover some of the city’s payment.
Just when a jury will levy punitive damages is highly unpredictable, attorneys who handle such cases say.
In the Rodney G. King beating case, a federal court jury last year awarded King $3.8 million to compensate him for the injuries he suffered at the hands of police during the infamous 1991 beating. The city picked up that tab.
The same jury decided that former Officers Laurence M. Powell and Stacey C. Koon had been sufficiently punished and should not be forced to pay King as much as $15 million from their own funds.