Qualified immunity is a defense against standing in a civil trial, normally against police
Download 0.87 Mb.
|
- Navigate this page:
- Failure is a reason to get rid of indemnification
“Tricky Affirmative”Get Rid of Qualified Immunity Because it is IrrelevantSince officers are indemnified, there is no benefit to QIJoann Schwartz, 2014, Police Idemnification, New York University Law Review, June 2014, http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-89-3-Schwartz.pdf , Joanna Schwartz is a Professor of Law at UCLA School of Law. She teaches Civil Procedure, the Civil Rights Litigation Clinic, and a variety of courses on police accountability and public interest lawyering. In 2015, she received UCLA’s Distinguished Teaching Award. Professor Schwartz is one of the country’s leading experts on police misconduct litigation. Her studies examine the frequency with which police departments gather and analyze information from lawsuits, and the ways in which litigation-attentive departments use lawsuit data to reduce the likelihood of future harms. She has also examined the financial effects of police misconduct litigation, including the frequency with which police officers contribute to settlements and judgments in police misconduct cases, and the extent to which police department budgets are affected by litigation costs. Professor Schwartz has also looked more broadly at how lawsuits influence decision-making in hospitals, airlines, and other organizational settings. Professor Schwartz additionally studies the dynamics of modern civil litigation. Recent scholarship examines the degree to which litigation costs and delays necessitate current civil procedure rules, and compares rhetoric with available evidence about the costs and burdens of class action litigation. She is co-author, with Stephen Yeazell, of a leading casebook, Civil Procedure (9th Edition). Professor Schwartz is a graduate of Brown University and Yale Law School. She was awarded the Francis Wayland Prize for her work in Yale Law School’s Prison Legal Services clinic. After law school, Professor Schwartz clerked for Judge Denise Cote of the Southern District of New York and Judge Harry Pregerson of the Ninth Circuit Court of Appeals. She was then associated with Emery Celli Brinckerhoff & Abady LLP, in New York City, where she specialized in police misconduct, prisoners’ rights, and First Amendment litigation. She was awarded the New York City Legal Aid Society's Pro Bono Publico Award for her work as co-counsel representing a class of inmates challenging conditions at Rikers Island. Immediately prior to her appointment, Professor Schwartz was the Binder Clinical Teaching Fellow at UCLA School of Law. Another critique of qualified immunity doctrine is that it rests on an unfounded premise—that defendants are financially responsible for settlements and judgments entered against them. The Supreme Court has taken what it calls a “functional approach to immunity questions,” in that the Justices purport to “examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and [they] seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.”40 Yet the Justices appear to have relied on little more than their own intuitions when concluding that the threat of personal liability would have a debilitating effect on law enforcement officers’ decisionmaking.41 Evidence that officers are virtually always indemnified would contradict one of the foundational assumptions underlying the Court’s qualified immunity doctrine. The Court has even obliquely suggested that evidence of “sufficiently certain and generally available” indemnification might “justify reconsideration of the balance struck in Harlow and subsequent cases.”42 Of course, nonfinancial burdens associated with being named in a lawsuit may influence officers’ behavior.43 But if officers do not personally satisfy payouts, the Court’s current, stringent qualified immunity standards—already criticized as “complicated, unstable, and overprotective of government officers”44—have significantly weaker justification.45 Failure is a reason to get rid of indemnificationJoann Schwartz, 2014, Police Idemnification, New York University Law Review, June 2014, http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-89-3-Schwartz.pdf , Joanna Schwartz is a Professor of Law at UCLA School of Law. She teaches Civil Procedure, the Civil Rights Litigation Clinic, and a variety of courses on police accountability and public interest lawyering. In 2015, she received UCLA’s Distinguished Teaching Award. Professor Schwartz is one of the country’s leading experts on police misconduct litigation. Her studies examine the frequency with which police departments gather and analyze information from lawsuits, and the ways in which litigation-attentive departments use lawsuit data to reduce the likelihood of future harms. She has also examined the financial effects of police misconduct litigation, including the frequency with which police officers contribute to settlements and judgments in police misconduct cases, and the extent to which police department budgets are affected by litigation costs. Professor Schwartz has also looked more broadly at how lawsuits influence decision-making in hospitals, airlines, and other organizational settings. Professor Schwartz additionally studies the dynamics of modern civil litigation. Recent scholarship examines the degree to which litigation costs and delays necessitate current civil procedure rules, and compares rhetoric with available evidence about the costs and burdens of class action litigation. She is co-author, with Stephen Yeazell, of a leading casebook, Civil Procedure (9th Edition). Professor Schwartz is a graduate of Brown University and Yale Law School. She was awarded the Francis Wayland Prize for her work in Yale Law School’s Prison Legal Services clinic. After law school, Professor Schwartz clerked for Judge Denise Cote of the Southern District of New York and Judge Harry Pregerson of the Ninth Circuit Court of Appeals. She was then associated with Emery Celli Brinckerhoff & Abady LLP, in New York City, where she specialized in police misconduct, prisoners’ rights, and First Amendment litigation. She was awarded the New York City Legal Aid Society's Pro Bono Publico Award for her work as co-counsel representing a class of inmates challenging conditions at Rikers Island. Immediately prior to her appointment, Professor Schwartz was the Binder Clinical Teaching Fellow at UCLA School of Law. Evidence of widespread indemnification also has implications for the litigation of civil rights damages actions. Anecdotal evidence suggests that government attorneys may use the possibility that officers will not be indemnified to their advantage during settlement negotiations, trial, and post-trial proceedings. Civil rights litigation practice— like civil rights doctrine—should not rely on flawed assumptions about the likelihood of indemnification. Accordingly, plaintiffs should be allowed to counter the strategic use of possible indemnification denials with evidence of widespread indemnification. For example, assuming punitive damages doctrine does not change,310 evidence of indemnification practices should play a larger role in trial and post-trial decisions in ways that would prevent government attorneys from misleading judges and jurors about who will satisfy punitive damages awards.311 Current law prevents plaintiffs’ attorneys from unilaterally introducing evidence of governments’ indemnification practices.312 Yet courts have also concluded that if a defendant seeks to introduce information about his financial resources—as though to suggest that he will be responsible for the judgment—the door is opened to discovery and possible admission at trial of evidence about indemnification practices.313 As Judge Posner explained in a Seventh Circuit decision: “The defendant should not be allowed to plead poverty if his employer or an insurance company is going to pick up the tab.”314 At each stage of litigation, courts have allowed evidence of indemnification to counter evidence suggesting that an officer will personally satisfy a punitive damages judgment. In one civil rights action brought against a New York City police officer, the City objected to the plaintiff’s request for discovery about the City’s prior decisions to indemnify punitive damages judgments. Directory: uploads uploads -> 587 Return function, r i(X) r i(0) r i(1) r i(2) r i(3) 1 0 2 4 6 Thermal Station, I 2 0 1 5 6 3 0 3 5 6 10 uploads -> Department of science and humanities department of mathematics part-a questions and answers uploads -> The Case Against the nypd’s Quota-Driven ‘Broken Windows’ Policing What Is It? uploads -> For want of a nail uploads -> Ownership Models There are two different types of ownership models uploads -> Police Militarization uploads -> City of rising star regular meting thursday, july 14, 2016 uploads -> Township of winfield uploads -> Stop Militarizing Law Enforcement Act of 2014 uploads -> The Black Panther Party’s Ten-Point Program What We Want Now! Download 0.87 Mb. Share with your friends:
|