ABSTRACT
In civil litigation, police officers typically occupy the role of defendant, responding to claims of misconduct like excessive force, unlawful arrest, or discriminatory policing. Lately, however, police officers have increasingly been taking on a different litigative role: that of plaintiff. In the wake of the Black Lives Matter protests and the corresponding attention to continuing practices of police violence, police officers are now quite frequently suing the people they police. These tort suits allege all sorts of harms, including physical injuries from confrontations, emotional harms from ‘being forced’ to inflict violence on others, and defamation and privacy harms said to flow from complaints of misconduct. As a small sampling, the police officers who conducted a botched search of rapper Afroman’s residence sued him for defamation when he put video recordings of their actions into his music videos; multiple officers have sued Black Lives Matter protestors for physical and emotional injuries resulting from the ensuing clashes; an officer who shot Breonna Taylor sued her boyfriend for shooting at them when they burst into her apartment unannounced; and a Chicago officer who shot and killed a mentally ill teenager and his kindly neighbor sued the teenager’s family for creating the scenario that ‘forced’ the officer to shoot them.
These plaintiff police lawsuits have profound practical and political significance, and this Article is the first to uncover and analyze this litigative phenomenon. These suits bring core and fundamental principles of justice into serious tension: on the one hand, the idea of open courts and the right to petition for redress of grievances are prized properties of the American legal system, and all who receive injuries through wrongful means – including police officers – deserve to seek compensation and deterrence. On the other hand, these plaintiff police lawsuits inflict a plethora of harms. They exacerbate the power imbalance between the police and those who are policed; they have a demonstrable and measurable chilling effect on political participation; they add to the mismatch in accountability where citizens are generally unable to successfully sue police because of procedural and doctrinal hurdles yet police have great ability to successfully sue them; and they constitute a distinct democratic harm that degrades the relationship between the citizenry and local governments in deeply troubling ways. Ultimately, this Article argues that the competing values of democracy, political participation, compensation, and deterrence are best served by disallowing plaintiff police suits in all but a very narrow set of circumstances, and offers a feasible framework for implementing this reform.
Swan, Sarah Lynnda, The Plaintiff Police (June 1, 2024), 134 Yale Law Journal (forthcoming 2024).
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