This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountablility of qualified immunity, reform advocates should acknowledge that the very distinction between constitutional and common-law torts is arbitrary for purposes of individual officer deterrence and accountability.
By examining the relationship between Fourth Amendment excessive force jurisprudence and the common-law torts of assault, battery, and negligence, this Article highlights that the analytical distinction between those legal doctrines imposes an improper demarcation for civil liability. If law enforcement agencies concern themselves solely with the constitutionality of their employees’ conduct, training concentrates on the instant moment in which deadly force is used without substantial reflection on the conduct, including antecedent negligence, that led to the confrontation. At the same time, whether an officer can be held personally accountable should not be based on the intentionality of the conduct; rather, the reprehensibleness of the conduct is a more appropriate benchmark for individual liability. By acknowledging that tort law addresses various types of law enforcement activity that do not necessarily rise to the level of constitutional or criminal infractions, legislative bodies can begin conceptualizing public tort law as an important component of criminal justice reform. But to do so, we need tort justice reform.
Stern, Paul, Tort Justice Reform (May 15, 2019). University of Michigan Journal of Law Reform, volume 52, no 3, 2019.