Rogue Cops Find Friends at Court

Jerome H. Skolnick teaches at the New York University School of Law. He is the co-author, with James J. Fyfe, of "Above The Law: Police and the Excessive Use of Force" (Free Press, 1993)

Jill Brown’s husband, Todd Brown, made a costly and painful choice when he turned his truck and sped away from an Oklahoma police checkpoint in 1991. When police caught up with him four miles later, one deputy pointed a gun at him and the other, Reserve Deputy Stacy Burns, sharply pulled Jill Brown out of the car, spun her around and threw her to the ground. Todd Brown claimed that when he heard his wife cry out, he tried to find out what was wrong but was punched repeatedly. As he was being beaten, Brown says he said, “This is just like L.A., huh, boys,” to which Reserve Deputy Burns reportedly responded, “No, this is a helluva lot worse.”

Jill Brown sustained severe injuries to her knees. She had four operations, two on each knee, and doctors believe that total knee replacements will be required. She sued the County Commissioner of Bryant County, Okla., in a federal district court under the 1871 Civil Rights Act. A jury awarded Jill Brown’s damages and legal expenses of about $800,000, after finding that Burns did not have probable cause to arrest her and used excessive force in doing so.

Burns had been hired by his uncle, Bryan County Sheriff B.J. Moore. Moore testified that he was generally aware that Burns had a lengthy police record, but said on cross examination that he did not notice the assault convictions, the record of resisting arrest, public drunkenness and using a false identification.

The 5th Circuit Court of Appeals (New Orleans) upheld the jury award after noting that Burns’ background evidenced a “deficient character,” a “propensity for violence” and a “disregard for the law,” all of which should have precluded his employment as a law enforcement officer.


But on April 28, the Supreme Court overruled the 5th Circuit in a 5-4 decision crafted by Justice Sandra Day O’Connor. The court held that to sustain a claim under the Civil Rights Act of 1871, the plaintiff has to show that the municipality itself was the “moving force” behind the injury.

The dissent, by Justice David H. Souter, argued that a city or county should be held accountable for actions by a policymaker, such as a sheriff, if the single act amounts to “deliberate indifference to a substantial risk that a violation of federal law will result.” In plainer English, since Moore was a county official who made hiring decisions, he qualified as a policymaker. In this case, he made a decision reeking of nepotism, hiring a nephew who was a time bomb. Therefore, the county should pay for the injuries caused by the resulting explosion.

Bryant County vs. Brown and the cases leading to it show the malleability of legal doctrine. The 1871 Civil Rights Act under which Jill Brown sued had lain dormant for nearly a century. The act provided civil and criminal remedies for people whose constitutional rights were violated by “persons acting under color of state law.” The long dormancy period was traceable to a Catch 22. If police officers broke state laws while transgressing citizens’ constitutional rights, they argued that they were acting beyond “the color of law.” In Southern states, police officers who violated constitutional rights argued that they had done nothing more than follow state law. It wasn’t until 1961--a period that some historians have called the second Reconstruction--that the logjam was broken. In a Chicago case involving a black family terrorized by the police, the court under Chief Justice Earl Warren ruled that “color of law” applies to cops who commit constitutional violations--regardless of whether they also violate state law.

But it was not until 1978 that a case assigned liability to local governments--cities and counties--for constitutional violations by local administrators. About as removed from police practices as one could imagine, the case involved a pregnant New York City social worker who sued her agency for denying her constitutional rights, after she was told that it was her department’s “official policy” to compel pregnant employees to take unpaid maternity leaves before such leaves were required for medical reasons. This “custom and policy,” the court said, made the agency and the city liable for the harm. The case thus established through federal law a municipal “deep pocket” for redress of constitutional violations.


The larger significance of the Supreme Court’s Brown case ruling is in its implications for compensating victims of police brutality across the nation by invoking a narrow “custom and practice” interpretation of states’ and cities’ responsibilities under the 1871 act. This is a loss not only to Jill Brown, but to future victims of brutal police officers.

Had a similar situation occurred in California or other states that require government bodies to pay most judgments against public employees, Jill Brown might well have been compensated. The more liberal dissenters were trying to move civil rights law in that direction of responsibility, holding the county liable for damages traceable mainly to an administrator’s decision. But the Supreme Court majority upheld a more rigid interpretation of “custom and practice” jurisprudence. The practical result could hardly have escaped their notice--that the decision protects local taxpayers while denying compensation to a small segment of deserving victims of police brutality. For some of us that seems a damned shame.