US: A Dubious Legal Doctrine Protects Cities From Lawsuits Over Police Brutality

Here’s how Congress can fix 

Nearly six years after “I can’t breathe” became Eric Garner’s last words, the same plea is reverberating across a horrified nation. This time, it was George Floyd’s.

Today, these words represent our failure to respond to law enforcement misconduct in a meaningful way. They are an indictment of our inaction in the face of injustice. And they are evidence that the legal deterrents compelling nationwide reform are inadequate. Systemic racism can’t be changed overnight, but the law can be.

On Sunday, Rep. Justin Amash announced plans to introduce the Ending Qualified Immunity Act. Qualified immunity shields police officers from civil liability for violating a civilian’s constitutional rights in most circumstances. Reforming it is an important step toward holding law enforcement accountable for abuse of power. But Congress must also act to address the less-well-known but equally pernicious rules governing municipal liability. It’s time to hold local governments accountable for police violence.

Under state tort law, when a commercial truck driver causes injury or death, the victim can recover damages in one of two ways. First, the victim can sue the truck driver. But if the accident is severe, it is unlikely the driver will have the resources to fully compensate the victim. So, the victim has a second option: suing the trucking company that employed the driver. The company is more likely to have pockets deep enough to pay the victim. And it is generally responsible for the actions of its drivers under a legal concept known as respondeat superior, Latin for “let the master answer.” Or, in ordinary parlance, “the boss pays.”

Holding both the employee and the employer responsible is good policy: It ensures victims are fully compensated, incentivizes employees to discharge their duties with care, and incentivizes employers to promote safe business practices.


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