abstract. In civil litigation, police officers typically occupy the role of defendant, regularly responding to allegations of excessive force, unlawful arrest, and discriminatory policing. However, police officers can also don a different litigative role: that of plaintiff. In the wake of the Black Lives Matter protests and the increased attention to police violence, for example, officers quite frequently sue 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 police misconduct.

These plaintiff police lawsuits have profound practical and political significance. They 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 suffer wrongful injuries—including police officers—deserve to seek compensation and deterrence. On the other hand, these lawsuits inflict a plethora of harms. They exacerbate a power imbalance between the police and those who are policed; they have a demonstrable chilling effect on political participation; they add to an accountability mismatch where citizens seeking to sue police face significant procedural and doctrinal hurdles, but police can sue citizens with relative ease; and they constitute a distinct democratic harm that degrades the relationship between the citizenry and local governments in troubling ways. 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 it offers a feasible framework for implementing reforms.

author. Professor of Law and Dean’s Civil Governance Scholar, Rutgers Law School (Newark). For helpful comments and conversations, many thanks to Anita Bernstein, Samuel Beswick, Ellen M. Bublick, Nestor M. Davidson, Rachel Harmon, Wayne A. Logan, David L. Noll, Luke Norris, Kathryn A. Sabbeth, Anthony Sangiuliano, Joanna C. Schwartz, Matthew A. Shapiro, Nadav Shoked, Zoë Sinel, G. Alex Sinha, Malcolm Thorburn, Reid Kress Weisbord, and the participants of the Tort Law and Social Equality Speaker Series, the Cardozo Law School Faculty Workshop, and the 2023 State and Local Government Law Works in Progress Conference at Northwestern Pritzker School of Law.

Introduction

On civil court dockets, police officers are common and constant defendants.1 The injuries police inflict on the citizenry each year create a continuous deluge of claims: victims of excessive violence, unlawful arrests, and civil-rights violations regularly bring lawsuits against the police for these harms.2

However, police officers can also assume a different litigative role: that of plaintiff.3 In the wake of the Black Lives Matter movement, for example, police officers quite frequently sue the individuals they police, both by bringing counterclaims in existing litigation and by initiating the first complaint in a proceeding.4 These officers allege a wide variety of injuries and harms, including physical injuries incurred while policing, emotional harms said to arise from “being forced” to inflict police violence on others, and defamation and privacy harms related to complaints of police 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 recordings of their actions into his music videos;5 multiple officers have sued Black Lives Matter protestors for physical and emotional injuries resulting from the ensuing clashes;6 an officer who shot Breonna Taylor sued her boyfriend for shooting at the police when they burst into her apartment unannounced;7 and an officer who shot and killed a mentally ill teenager in Chicago sued the teenager’s family for creating the scenario that “forced” the officer to shoot.8

These suits are profoundly important, both politically and practically. They bring into tension serious and core principles of justice and democracy. On the one hand, open courts and the right to petition for redress of grievances are prized properties of the American legal system, and those who receive wrongful injuries deserve a path to compensation and deterrence. Access to courts is such an important right, in fact, that it is explicitly enshrined in the vast majority of state constitutions,9 and the right to bring litigation and to call to account those who harm us in legally cognizable ways is often cited by scholars as a fundamental feature of any society that calls itself democratic.10 Corrective-justice principles dictate that wrongdoers should be held accountable when they injure others, and a central purpose of the entire system of tort law is to compensate those who are wrongfully injured.11 Further, giving police officers the option of pursuing civil damages for on-the-job injuries arguably aids society by helping to ensure that people keep choosing to become police officers, and avoids the potential unfairness of limiting the right to sue based on a person’s chosen profession.12

On the other hand, these plaintiff police lawsuits inflict a parade of harms. First, these suits exacerbate the immense power imbalance between the police and the policed. An encounter with a police officer is an encounter with “the force”—a designated member of an armed collective with access to the massive resources of the state, who is empowered to use lethal violence and restrain and imprison individuals with little outside oversight.13 The individuals who are usually on the receiving end of policing tend to be those who are marginalized on raced, classed, and gendered dimensions, while police officers are privileged holders of a public office, tasked with physically enforcing the law.14 When these officers sue those whom they police, their special status heightens the structural power disparity between the parties, and they can use their proximity to the criminal law to the detriment of those they sue.15

Second, plaintiff police lawsuits create an accountability asymmetry. When citizens sue the police, they face a challenging series of procedural and doctrinal obstacles likely to torpedo their litigation.16 Because police officers are a special kind of public actor, a complex matrix of special rules governs claims against them, and most claims fail as a result.17 But when police officers sue citizens, their public status suddenly transforms into a more “private” one, with almost no special rules attaching.18 Citizens, then, are left with very little ability to sue police successfully, while the police have a much greater ability to sue citizens successfully.

Third, and perhaps most importantly, plaintiff police suits constitute a distinct democratic harm that degrades the relationship between the citizenry and local governments.19 The vast majority of police officers in the United States are local officers, employed by a municipality or other local government, and police officers are prominent representatives of those localities.20 Contact with police officers is a highly salient way that “[c]itizens learn about how government works and whether government officials value them.”21 Police-citizen interactions are inherently and deeply political: they constitute “a moment when the citizen and the city come face to face.”22 Indeed, a comprehensive sociological study of citizens who have had police encounters concludes that the police and other institutions of law enforcement become “a single lens through which the [entire] political system and its actors [are] viewed.”23

In other words, negative encounters and interactions with police officers are scaled out onto the city more broadly. Negative encounters with officers result in measurable withdrawals from an entire range of civic activity, from voting to something as mundane as using city hotlines for assistance with potholes and broken sidewalks.24 Even a relatively minor encounter, like getting inappropriately but momentarily stopped by police while going about one’s business, demonstrably deters voting and stymies “citizen engagement . . . with the local government.”25 When a citizen-officer encounter results in additional civil litigation because an officer goes on to sue that citizen, it further fractures the relationship between that citizen and their political community, exacerbating political withdrawal and destroying the potential for a vibrant, democratic polity in the city.26

The power and accountability asymmetries and democratic harms of plaintiff police suits suggest that these suits should, as a public-policy matter, be limited. That argument gains additional traction when it becomes clear that the main goals of tort litigation—compensation and deterrence27—are readily achievable by alternative, less politically corrosive means. Workers’ compensation and additional administrative remedies for injured law-enforcement officers can offer appropriate compensation without the drawbacks of plaintiff police litigation.28 And already-existing criminal-law provisions specifically governing harms to police officers offer much more deterrence than any potential threat of civil liability might.29 Although limitations on the ability to bring litigation for wrongful injury should not be imposed lightly, in the particular context of suits initiated by police—that is, in a system where the rules are already so protective for police defendants and where claims brought by police cause great and demonstrable harm to political participation—such limitations are justified.

Fortunately, the building blocks of a feasible framework to limit plaintiff police claims already exist: anti-SLAPP legislation, the professional-rescuer doctrine, and workers’ compensation regimes themselves can all function as mechanisms to limit these claims. Anti-SLAPP legislation targets the use of “Strategic Lawsuits Against Public Participation,” a term coined by two professors who recognized that lawsuits are sometimes filed for the main purpose of stifling complaints or silencing disapproving views.30 Anti-SLAPP legislation tries to discourage these weaponized lawsuits by providing mechanisms for their early dismissal and sometimes requiring those who bring them to pay the other side’s legal costs.31 Following the scourge of defamation cases that arose in response to the #MeToo movement, a majority of states now have anti-SLAPP legislation, and this type of legislation has the power to limit plaintiff police claims.32

The professional-rescuer doctrine, originally known as the fireman’s rule, represents the common law’s first attempt to resolve the tensions that arise when people in official rescuing roles sue those they serve. Still at play in a majority of states, the rule prevents firefighters, police officers, and other safety officials from bringing negligence claims against those who created the perils requiring emergency response.33 Although a number of courts have recently relaxed the application of this rule,34 it should be revived at least with regard to plaintiff police suits.

Workers’ compensation regimes, in addition to serving as a source of reliable compensation, could also act as an additional lever to limit plaintiff police litigation. Many workers’ compensation statutes contain an “exclusive remedy” provision where, in exchange for receiving workers’ compensation benefits, employees waive their right to sue their employer.35 These could be modified to include, for police officers, a waiver of a right to sue a third party that contributed to their on-the-job injury. Such a waiver could also occur directly through the employment contract.

To make these arguments, this Article proceeds as follows. Part I describes the contours of plaintiff police lawsuits and characterizes plaintiff police litigation as occurring in four main areas: claims arising from protests, claims connected to alleged emotional harms, claims for physical injuries, and claims alleging defamation or other privacy harms flowing from complaints about police misconduct. Part I also connects this litigation to current trends and historical roots. Part II considers the arguments for and against plaintiff police litigation. It concludes that because police occupy a sui generis status as enforcers of the law and holders of a public office, the 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. Building on existing legal doctrines and tools, Part III offers a viable framework for limiting these claims.