Civil suits piling up, mass torts likely to follow
The disproportionate rates at which police use excessive and deadly force against racial minorities in the U.S. is a matter of significant national concern. While the number of cases involving police misconduct continues to grow, plaintiffs’ attorneys are grappling with how to hold these civil servants accountable. The Supreme Court decisions of 1967 (Pierson v. Ray, 386 U.S. 547) and 1982 (Harlow v. Fitzgerald, 457 U.S. 800) established state sovereign immunity and qualified immunity, severely limiting prosecutors’ options in police brutality cases.
Defining the problem
Police brutality can encompass anything from racial profiling to assault, from verbal abuse to forced or coerced confessions, and from excessive or unnecessary force to falsified evidence to wrongful death and more. It is a civil rights violation in which law enforcement officers use undue or excessive force against an individual. Depending on the circumstances, an officer of the law may use reasonable physical force to diffuse an incident or apprehend an individual, but that physical force must cease once the need for force no longer exists.
The right to file civil actions
Filing a civil action is one of the only ways to hold police officers accountable. Civil action for deprivation of rights, outlined in 42 U.S. Code 1983, authorizes private persons to seek monetary damages from government when they are deprived of their civil rights under the U.S. Constitution or federal law by persons acting under “color of law.” Section 1983 claims are an important and powerful tool to redress civil rights violations, but they often involve complex legal questions (e.g., issues surrounding qualified immunity, state actors, clearly established rights, collateral estoppel, etc.).
Mass tort attorneys faced similar hurdles in the early days of asbestos litigation, and they are uniquely experienced in untangling complex legal matters. Litigating mass claims arising from single events like protest marches against racial injustice and multiple events occurring over time like stop-question-and-frisk policies in cities like New York and Los Angeles are prime opportunities for experienced civil litigators and enterprising mass tort firms to hold powerful institutions accountable once again.
Current class action claims
Mass tort and personal injury giant Morgan and Morgan recently expanded their practice to include handling civil rights abuse cases in the wake of the events in Minneapolis and other cities across the country following the death of George Floyd at the hands of police officers. High profile attorney Mark O’Mara is also joining the fight by filing lawsuits against cities and police departments in Texas and Florida on behalf of families of victims of police brutality. Last year, the New York branch of the ACLU and the Legal Aid Society sued New York City, Mayor Bill de Blasio and police leadership and officers over their response to summer protests in 2020. The suit claims the New York City Police Department violated protesters’ First Amendment rights with brutal force.
The class action complaint asks for monetary damages for the 10 victims named in the case, as well as a call to action for other victims to come forward and join the class. The suit laid out a series of allegations of cops abusing their authority, dating from May 28 to June 6, 2020. Defendants include the NYPD’s top brass as well as Mayor de Blasio. “We think it’s high time that the police department and the city of New York be held to account for this misconduct,” said lawyer Jonathan Moore, who represents the plaintiffs in the case. Moore is a partner at Beldock, Levine & Hoffman, a firm with extensive experience filing civil rights violation lawsuits against police departments.
A call for reforms
In addition to monetary damages in civil litigation, lawyers and advocates have also called for legal reform measures including the state law imposition of strict tort liability on municipal governments for police misconduct. Under the Restatement of Torts, a person who is found by a court to have carried on an ‘abnormally dangerous activity’ will be subject to strict liability for physical harm resulting from that action.
Other non-monetary reforms include reducing policing of “low-level offenses that pose no threat to public safety” to reduce the risk of police violence in communities. “Scaling up the role of mental health providers, substance abuse counselors and other community-based responses” is more effective in such cases, according to a study in American Psychological Review. Such reforms could remedy the harms of police misconduct more fully than our existing laws do.
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