Should Tort Law Care About Police Officers?

abstract. Should police officers be able to file tort lawsuits for injuries that they suffer while on duty? In this Essay, written in response to Professor Sarah L. Swan’s The Plaintiff Police, Professors Ellen M. Bublick and Jane R. Bambauer contend that the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including people wrongfully injured while employed as police officers. Beginning with a review of recent appellate opinions in suits filed by police, Bublick and Bambauer outline the types of actions that would be eliminated by a proposed ban on police officer injury suits. They next examine police suits through the popular, if inaccurate, frame that civilians can obtain virtually no civil remedies based on police misconduct. From the baseline of actual suits, Bublick and Bambauer argue that civil enforcement is valuable to hold both civilians and officers accountable for the unjustified harms that they cause to each other.

Introduction

If a person purposely shoots at and injures another, should the shooter be accountable to pay damages to the person harmed? Absent significant justification, in almost every circumstance in every state, the answer is yes.1 But in The Plaintiff Police, Professor Sarah L. Swan argues that if the injured person is a police officer, the answer should be no.2 If the officer is hit by a negligent driver’s car, she argues for the same result: no tort claim. Professor Swan would dramatically limit police claims to exclude intentional, reckless, and negligent torts, with only narrow exceptions.3

As support for this extreme measure, The Plaintiff Police draws on the backdrop of historical racism, significant abuses of police power, and a set of cases that push the limits of tort liability no matter who brings the claim.4 That set includes Doe v. Mckesson, in which a police officer who was severely injured by a rock-throwing protestor filed suit against Black Lives Matter (BLM) protest organizers (a case that we have previously criticized as insufficiently protective of First Amendment rights).5 Alongside concerns about racism in policing, The Plaintiff Police draws on the widespread perception that injured civilians can rarely obtain civil remedies for police abuses.6 Together, these impressions of vindictive police plaintiffs, and immunity from tort liability, foster a reflexive hostility to the police. In light of these impressions, Professor Swan argues that any possibility of civil action or recovery by police officers will be disproportionate to civilian legal actions, worsen power differentials, dampen political participation, and harm local citizen-community participation.7 On that basis, The Plaintiff Police argues for a draconian, if easy to administer, rule: if the plaintiff is a police officer, the court should toss out the plaintiff’s claims at the start of the case.8

We are aware of no state or country that has granted its entire population absolute immunity from civil liability for the tortious, even criminal, harms that its civilians inflict on police. And we think there are good reasons they haven’t. In this Response, we argue that the arc of U.S. common law runs in the exact opposite direction: the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including civilians wrongfully injured by police and police wrongfully injured by civilians.9

The Plaintiff Police uses officer suits from injuries suffered during BLM protests to argue that tort claims filed by police officers are necessarily “a familiar backlash to African Americans who dare seek equal justice under the law.”10 However, the tort claims filed by Capitol police officers injured on January 6th serve as important counterpoints—reminders that officers’ personal rights of redress are an important feature of equal justice under the law.11 Racial equality is not served by complete immunities for civilian misconduct any more than “law and order” is served by complete immunities for police officers who abuse their power.

In Part I, we lay out our understanding of the current state of affairs for civil claims pursued by police and contrast it with the picture of current suits painted by The Plaintiff Police. In Part II, we correct the record about police defendants, showing that the civil-justice system should, and does, allow for a range of claims against individual police officers, their departments, and federal, state and local entities. In Part III, we challenge Professor Swan’s normative claim that officers’ pursuit of individual tort claims for injuries suffered is inherently bad for society. To the contrary, we see much value in deterring tortious or otherwise unlawful conduct through civil, rather than criminal, enforcement, both for police and for civilians.

I. the police as plaintiffs

We begin with what we think is a necessary corrective to the descriptive account of police civil claims. We then place these cases in the context of larger tort trends.

A. Cherry-Picking the Police Plaintiffs

The Plaintiff Police presents a small set of civil claims—only a few dozen from the last twenty-five years—as though they represent the “current plaintiff police litigation landscape.”12 By the article’s account, the trend in civil suits brought by police cluster around several types of claims: (1) suits against individuals for hurling insults at police (namely, a cite to one news article about a case of a civilian’s racist rant against a Chinese-American detective that we believe may well have been awful but lawful and rightly dismissed);13 (2) defamation claims (which, as Professor Swan explains, require police, as public officials, to satisfy extremely high standards of pleading and proof);14 (3) claims for emotional distress when the police officer was involved in a shooting (one case brought as a counterclaim for which the officer received no monetary award, and a second case brought against a person who reportedly fired 200 rounds at officers from his home). A third news report concerned an officer claim for PTSD against an electric company whose allegedly negligent downed power line electrocuted a man the officer could not save;15 and (4) claims against protest organizers and others based on violence perpetrated by other participants—a category that includes claims against defendants as far ranging as Donald Trump, January 6th rioters, and BLM organizers.16

When discussing claims that police officers have brought based on physical injuries, The Plaintiff Police devotes a full page to recounting the dropped counterclaim of an injured police officer who was shot by Breonna Taylor’s boyfriend, but it spends only a paragraph on “run-of-the-mill” negligence cases based on injuries that occur in the course of the plaintiff’s police work.17

This account leaves a misleading impression that tort claims that are, or would be, brought by police officers are either self-serving in a larger power struggle between the police and overpoliced communities or are mundane and easily handled through workers’ compensation. But our review of recent cases provides a different impression—that, in fact, on-duty police often confront acts of negligence, recklessness, or malice that are not inherent to the nature of policing and should be amenable to accountability, deterrence, and compensation through the tort system.

Looking at the full set of appellate opinions in tort cases filed by police officers from the last five years, we found that dozens of state appellate and supreme-court cases have grappled with facts that test the limits of their state’s firefighter’s rules—that is, rules limiting certain lawsuits when a rescuer’s injury was caused by the very negligence that occasioned the rescuer’s presence. Several of these cases were indeed among the high-profile, protest-related cases discussed by The Plaintiff Police (for instance, based on the use of a chemical spray against an officer who collapsed and died on January 6th).18 A few of the recent appellate opinions involve facts that would be most closely covered by a traditional firefighter’s rule. Those cases involve officers who were injured by a dangerous person the defendant called police to remove from their premises.19 The remaining majority of cases offer sad vignettes of facts that deserve consideration in tort law, particularly because any other injured person in the same situation would overcome a motion to dismiss. The cases do not fit into the narrative of an inappropriate, let alone vindictive, police plaintiff trend. The questions asked in the recent cases include:

• If an officer directs a driver to move their car forward, and the driver—not intentionally but with gross negligence—drives directly into the officer, can the officer sue for damages?20

• Can an officer who falls on a crumbling, negligently maintained set of outdoor steps that are accessible to the public sue the (insured) homeowner? Should it matter that the officer was pursuing an unrelated third party on foot at the time, and that anybody else (including the fleeing felon) could have sued the homeowner in the same situation?21

• Can an officer who is pushed off a bridge by a truck while the officer was attempting to contain loose dogs sue the negligent truck driver?22

• Can an officer sue two women who shoved him, causing injuries, while he was attempting to arrest their friend?23 (In case it matters, this occurred at a gas station, not at a protest.)

• When Walmart negligently or recklessly maintains a water main that subsequently bursts, causing a frozen lake to form over the parking lot, does an officer have a claim if he is injured while tending to other emergencies caused by the frozen conditions?24

• Can an officer who is severely injured by a speeding car that was stolen from Dollar Rent A Car sue Dollar for negligent entrustment and negligent hiring and training?25

• Can a wounded officer, and a deceased officer’s estate, sue Home Depot for premises liability when the retailer’s private security guard detained a felon with an outstanding arrest warrant, but did not inform the officers that, contrary to customary practice, the guard had not searched the detainee for a weapon?26

• Can an officer’s estate sue the county for wrongful death based on inadequate training and staffing that resulted in greater risk to officers?27

These police-initiated claims are not materially different from the sorts of claims recently adjudicated on behalf of firefighters. For example:

• Can firefighters recover when a driver crashes his car into a fire truck and then fails to cooperate with firefighter instructions, causing further injury?28

• Can a firefighter maintain a claim when a warehouse owner did not warn firefighters that the wall above a stairwell was unfinished, even though the owner knew the firefighters would not be able to foresee that hazard in the dark and smoke-filled building?29

• Can a firefighter sue for gross negligence when the firefighter’s presence was required at the scene of a fire that was the property’s third fire in less than two weeks, and the county health department had told the defendant to take actions required by fire codes to reduce the risk?30

The adjudications in these cases address legal issues at varied stages of litigation and result in varied success by police and firefighter plaintiffs. But the cases do not scream out for drastic recovery-stripping reforms to tort law. If anything, they raise doubts about the wisdom of the firefighter’s rule to the extent that the injured plaintiffs are undercompensated by workers’ compensation, defendants have available insurance, and defendants are under-deterred.31 Moreover, many of these claims address the responsibilities of commercial entities and communities to address unsafe working conditions that cause serious harms to professional rescuers (as would be required with respect to private rescuers).32 And while these cases bear little resemblance to the concerns that prompt the proposed ban on police plaintiff suits, the breadth of the proposed rule would end this entire category of actual cases just the same.

B. The Evolution of Firefighter Suits

The Plaintiff Police frames recent tort claims by police as a reaction against progressive social movements, especially the BLM and #MeToo protests. The article also references the many recent lawsuits that stem from the January 6th violence but does not frame police claims as a reaction against extremist right-wing movements.33 Many social and legal factors, including racial tension in policing, contribute to evolving opportunities for police suits in recent decades. Professor Swan usefully harkens back to police plaintiff cases filed during the civil-rights movement of the twentieth century, which led to constitutional restrictions on defamation suits, for example. But the long-term trend toward increased police suits also has a more ecumenical and commonplace doctrinal trajectory.

Common-law restrictions on police suits in the United States typically stem from a doctrine known as the “fireman’s rule,” now the “firefighter’s rule,” as noted above.34 The rule has been articulated in many ways and is subject to many exceptions. A Utah Supreme Court case recites its core principle in this way: “[A] person does not owe a duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer’s presence and that was within the scope of hazards inherent in the rescuer’s duties.”35

The rule was traditionally grounded in two doctrinal concepts. First, landowner duties varied by the status of entrants on the land. Under this system, firefighters were classified as licensees—persons to whom a landowner’s only duty was not to engage in willful or wanton conduct.36 They were not classified as invitees, to whom an ordinary duty of reasonable care would have been owed. Second, firefighters were said to have assumed the normal, apparent risks expected in a dangerous job.37

For decades, tort scholars criticized the firefighter’s rule. Dean Prosser’s hornbook called the classification of police and other firefighters as noninvitees “quite foolish.”38 A number of state courts never adopted the rule.39 Nor did other countries follow suit.40

Even with a firefighter’s rule in place, however, many officer claims were not barred. As the Prosser hornbook noted, actors must still “refrain from injuring [officers] intentionally, or by willful and wanton misconduct.”41 Furthermore, the firefighter’s rule did not apply when “independent acts of misconduct” (distinct from the act that occasioned the rescuer’s presence) caused the injury.42 Courts have frequently permitted police recoveries in contexts that fall outside the firefighter’s rule—for example, when an officer stopped one car and was struck by another, and when an officer, in hot pursuit of a fleeing suspect, was injured by the collapse of a dilapidated fence.43

Year by year, adherence to the firefighter’s rule has dwindled. Its two main doctrinal foundations have now been widely abandoned: duties of reasonable care are often owed to licensees (and some trespassers), and all-or-nothing rules of assumption of the risk have been replaced by newer forms of comparative fault and apportionment of responsibility.44 Meanwhile, insurance covers injured officers’ losses in the same way as others’ losses.45 With insurance coverage available and foundational concepts removed, common-law courts have increasingly minimized or discarded the firefighter’s rule.46

As the firefighter’s rule has faded, police officers, like other “firefighters,” face fewer obstacles to filing ordinary tort suits.47 They are regarded more like ordinary tort claimants, and they are treated as such in other common-law countries such as the United Kingdom and Canada.48 The American Law Institute’s Restatement (Third) of Torts strongly supports this trend (and voted to remove the rule entirely).49

Courts provide a range of explanations for allowing police to file tort claims. Most track the long-held purposes of any tort suit: “to prevent the commission of wrongs; to compel redress to those who have suffered from them, and to inflict punishment in proper cases.”50 This logic applies to police suits no less than to others.

C. Police Officers as People: The Doctrine of Equal Consideration

The long-term trend toward treating injured officers in the same or similar manner as other plaintiffs make good sense.51 As the South Carolina Supreme Court wrote when it declined to adopt the firefighter’s rule, “The more sound public policy—and the one we adopt—is to decline to promulgate a rule singling out police officers and firefighters for discriminatory treatment.”52

Professor Swan argues that the “socially progressive interests” that usually “push[] for litigation expansions” should now reject police claims in order to promote social equality.53 However, choosing disfavored claimants based on an overtly political calculus would be a poor expressive choice for the law.54 To say that police officers alone should be stripped of their common-law legal rights of physical security would deny their humanity in a way that is difficult to reconcile with any theory of interpersonal justice in private law or any utilitarian calculus.55

Officers are symbols of raw power, as Professor Swan claims, but they are also more than that (or, should we say, less). When a police officer files a tort action against a civilian, the officer is suing as a civilian. Unlike in a criminal arrest, a civil claim requires the officer to approach the court in the same manner as any other human, not as an agent of the government. It requires the officer to pay for their own legal representation, to bear reputational costs personally, and to use their own time to pursue the case. They can file tort claims only for wrongs and harms that they have personally suffered and that would be actionable by others. As in other contexts, if an officer abuses the legal process, a range of consequences can, and should, follow—for example, sanctions and liability for tortious abuse of process.

As with civil claims more generally, officers’ claims protect important individual interests and require reasonable care by others. The family of a civilian killed in a robbery would have a tort claim against a co-conspirator who drove the getaway car.56 Civilians physically assaulted at the Capitol on January 6th could sue their assailants for battery.57 A person whose picture was displayed without consent on merchandise sold by another could seek damages for misappropriation.58 Likewise, when officers are killed, injured, or demeaned in similar situations, their injury claims stem not from their official power, but from their human frailty. Like others, they are vulnerable to physical harms and emotional and financial distress.59 And like other workers, they are entitled to concern for their safety.60 As Lady Justice Hale, the former President of the United Kingdom Supreme Court, wrote in a case in the United Kingdom, firefighters, police officers, ambulance technicians, and others whose public-service occupations are inherently dangerous “accept the risks which are inherent in their work, but not the risks which the exercise of reasonable care on the part of those who owe them a duty of care could avoid.” In short, people must avoid excess preventable dangers to officers, as to others, and the tort system should buttress that social goal.

This result is consistent with a general equality principle applied in other common-law countries. The idea of “legal equality” entails “the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts.”61 The principle is that “the rights protected by tort law are typically justifiable without reference to special features of the right-holder or duty-bearer.” 62 Accordingly, police officers, as people, are right-holders who should be entitled to assert their general legal rights.63 Permitting officer suits embraces the humanity and equality of persons, and this equality principle reinforces claims of civilian rights, as well.

II. police as defendants

The Plaintiff Police claims that affording near-complete civil immunity to all who harm officers amounts to equal treatment. According to the article, current law creates an “accountability mismatch” between tort remedies available to officers and those available to civilians.64 The article claims that it is “nearly impossible” to recover against tortious officers,65 whereas “police can sue citizens with relative ease.”66

We doubt that access to civil damages is as lopsided as Professor Swan suggests (if it is lopsided in this direction at all). On the police plaintiff side, our review of the last five years of appellate-court cases suggests that officers face a difficult road to recovery. Indeed, almost all of the opinions concern special firefighter’s rules that would bar only firefighter plaintiffs’ claims.67

More importantly, the mismatch claim greatly understates the extent to which civilians can, and do, recover in civil actions against police. The article contends that persons suing police face “procedural, doctrinal, and substantive hurdles [that] have made it nearly impossible” to sue successfully.68 That contention is itself somewhat incredible based on the article’s own acknowledgement that civilians file “a continuous deluge of claims” against police.69 The article notes, for example, that “[w]ell over 5,000 lawsuits are brought against the New York City Police Department (NYPD) each year.”70If claims against police rarely succeeded, it would be hard to imagine a mechanism that would afford claimants the legal resources to file this “continuous deluge”71 of nonviable claims.

In truth, these are not futile suits. The same New York City Comptroller report that lists the 6,891 lawsuits filed against the NYPD in fiscal year 2023also reports that NYPD settlements for these cases totaled $266.7 million (an average of $38,700 per suit, an amount nearly forty percent greater than the last Bureau of Justice Statistics estimate of the national median for tort awards, in 2005).72 The average cost of personal-injury police action claims settled pre-litigation was $17,609, while the average cost of those resolved during litigation was $68,702. The aggregate cost of civil-rights-claim payouts in particular was $145.4 million in FY 2023 and $144.0 million in FY 2022.73 The NYPD was the New York City agency “with the highest tort claim settlement and judgment costs” by a large measure.74 “Health and Hospital” claims, in contrast, paid out a mere $23.3 million.75 Of the ten largest individual tort claims against the city in fiscal year 2023, six settlements were for reversed convictions and two for excessive police force.76

The NYPD is not alone. Police departments and governmental agencies all over the country pay substantial sums for settlements and judgments to resolve lawsuits alleging police misconduct.77 Chicago paid over $100 million in settlements in 2024.78 Professor Joanna Schwartz calculated that police-misconduct payments in forty-four jurisdictions from 2006 to 2011 totaled three-quarters of a billion dollars.79

The Plaintiff Police treats these large numbers of lawsuits and payouts throughout the country not only as if they are inadequate to the actual harms suffered in the community (as they likely are, and as claims for injuries nearly always are), but as though they amount to virtually no right of recovery at all.80 On the basis of the bold and strange assertion that plaintiff civilians have no civil recourse against harms by police, the article claims that officers’ access to tort remedies should “match” the civilians’. That is, they should largely be barred.

But not only are civilians recovering in many police misconduct cases, the legal rules support these claims. Civilians can bring an array of misconduct-based causes of action against police and those around them.81 There are at least two sets of civil legal actions that civilians can pursue to obtain money damages for police misconduct: tort claims and civil-rights claims. Tort claims arise under state law. Civil-rights claims are often pursued under federal law but may also have state or local analogues.82 Tort and civil-rights claims for injuries caused by police can be filed against many different entities, including officers themselves, police departments, cities, counties, states, and the federal government.83

In the context of excessive force, officers can be sued in their personal capacity for ordinary intentional torts, such as battery84 and assault.85 An active issue in this context is the extent to which vicarious liability should apply to officers’ intentional torts.86

Civilians can also pursue claims against officers for negligent or reckless conduct, subject to state statutory requirements. In Arizona, for example, “[a]s a general rule, public entities and public employees are subject to tort liability for their negligence.”87 Yet significant exceptions remain.88 For instance, a civilian injured because of a police officer’s negligent driving can sue for negligence.89 However, if the driver is performing a discretionary act within the scope of her public duties—say, driving to the scene of a crime in a police car with emergency lights on—the officer enjoys qualified immunity under state law.90 In Arizona, however, the dreaded phrase “qualified immunity” does not have the same meaning as it does in federal civil-rights cases. Under Arizona law qualified immunity means that the plaintiff must show either recklessness or an intentional tort.91 To be sure, that is not an easy burden to prove, but it does not import the unhelpful contours of federal qualified-immunity law. A heightened standard of care for discretionary acts is in some ways akin to the reason for Good Samaritan laws: society sometimes wants police officers to race to the scene of a crime, not only at a heightened risk to others but also at a heightened risk to themselves.92 Another way to reframe the state-law recklessness standard for discretionary acts might be reasonable care under emergency circumstances.

The sense that civilians can rarely succeed in suits against police seems to stem from criticism of the federal qualified-immunity defense under § 1983. Nearly half of the pages devoted to civil actions for damages in The Plaintiff Police address qualified immunity under § 1983.93 The federal qualified-immunity doctrine shifted from the subjective standard of what a particular officer actually believed, to an objective standard—what a reasonable officer would have believed.94 Somewhere along the way, the Supreme Court tied that objective standard to whether the courts had clearly established a particular right in decided case law.95 Through that link, the Court unduly narrowed the set of cases that are likely to survive qualified-immunity review.96 We agree that the narrowed version of an objective test for officer notice is ill-advised. However, it does not eliminate § 1983 actions.97

Moreover, as noted, § 1983 actions are part of a larger system of torts and civil-rights actions. Attorneys prefer to file § 1983 actions because that statute provides for attorney fees and punitive damages.98 But even when a § 1983 claim is unavailable, the plaintiff can still plead a range of ordinary state tort claims. Sometimes these claims also face a qualified-immunity defense.99 That defense may require the plaintiff to prove that the officer engaged in gross negligence, as it does in Arizona, but it still provides the opportunity for suits, settlements, and recoveries.100

Even if claims against tortious police conduct were as difficult to bring as Professor Swan suggests they are, this would have little bearing on how to handle the claims that police file beyond providing a superficial symmetry. If patients have a difficult time winning medical-malpractice claims against doctors, for example, it would hardly remedy the problem to bar doctors from suing people who run red lights and injure them in crashes. The litigation bar that Professor Swan would impose on officers is punitive and poorly tailored to the problem of qualified immunity. It would also cause other unrelated harms.

III. the social benefits of (appropriate) civil recourse for police officers

Ultimately, Professor Swan’s proposal rests on arguments that police tort suits are bad for society—that they exacerbate power disparities,101 chill political participation,102 and provide police with yet another tool to harass the constituents they are supposed to serve.103

We have little doubt that a tort system that attracts frivolous lawsuits or undertakes no discussion of officer duties in constitutionally sensitive contexts would be a disservice to society. Thus, we recognize that the optimal standard for tort claims brought by active-duty police officers may deviate to some degree from the standards applied to other plaintiffs based on the policing context. As we have previously described with respect to police injuries in the context of protests, constitutional, statutory, and contextual concerns may reshape common-law rules in particular sets of cases.104 We agree, for example, that First Amendment concerns were insufficiently accounted for in the case of Doe v. Mckesson, in which a police officer filed a lawsuit against a BLM organizer based on acts of physical violence perpetrated by other protest participants.105 But a near-complete bar to police civil suits, as Professor Swan advocates, misses the mark by a mile and is more likely to degrade police-civilian relationships than to improve them.

A. Tort Law (Probably) Deters, and Deterrence Is Needed

The immunity Professor Swan proposes will likely increase (or, at least, fail to deter) violence and other harmful behavior. While Professor Swan recognizes that civil liability can deter unlawful conduct,106 she casts doubt on its role in this context. According to Professor Swan, “civil deterrents are rarely as powerful as criminal ones, and criminal deterrents are already grave in the context of harm to police.”107

We are not convinced. First, there is evidence that tort law deters harmful conduct, even in situations in which actors are not consciously thinking through the risks of lawsuits. For example, no-fault insurance led to increased auto accidents even though people have ample non-tort incentives to avoid car crashes.108 And states adopting medical-malpractice damages caps experienced more birth injuries after the change in law even though doctors have many reasons to care for their patients.109 Likewise, deterrence is one of the reasons that Professor Swan’s objection to expansive federal qualified-immunity rules protecting police has some heft: if police are not successfully sued, they are not deterred. The U.S. Supreme Court “considers it ‘almost axiomatic’ that civil rights damages actions deter government employees and policymakers.”110

Moreover, because of tort law’s broader scope, it can have a greater deterrent effect than does the criminal law. The scope of tort liability and the scope of criminal law differ in important respects. For example, negligence and defamation liability are not, and should not be, covered by criminal statutes to the same degree. Tort law can reach a wider range of negligent actors, such as businesses and landowners, who are sensitive to liability risk. In a range of contexts related to drunk driving, for example, tort law is more effective than criminal law at reducing accidents and saving lives.111 In part, this is because of tort law’s influence on actors whose negligent conduct creates risk. For example, in one study, when bar owners and managers perceived a higher probability of a tort suit, they “increased the bar’s level of precaution in serving obviously intoxicated adults” and its level of monitoring “to avoid serving alcoholic beverages to minors.”112 These tort-induced precautions lowered “motor vehicle fatality rates as well as fatality rates for other alcohol-related causes.”113 Tort law effected this change with fewer resources than some alternative strategies. For instance, an empirical study found that just one or two dram-shop cases (cases in which plaintiffs injured by a drunk driver sue a bar or restaurant for overserving alcohol) were as effective in inducing precautions as a ten-million-dollar increase in spending on policing.114 Injuries suffered by police officers often stem from negligent acts such as the careless driving of others, and tort liability is particularly important to deterrence in the negligence realm.

As to acts of violence and other criminal behaviors, civil justice adds value by “reliev[ing] the pressures on an overloaded system of criminal justice” with respect to minor crimes.115 It provides an avenue for justice that is less harsh and life-altering than a criminal prosecution. In Mathias v. Accor Economy Lodging, Inc., a well-known opinion on punitive damages, Judge Richard Posner describes how tort law can take pressure off of criminal law using the example of spitting in another’s face.116 Although this conduct is a criminal battery, the public does not need to devote its resources to prosecuting the minor offense because it can be addressed by punitive damages in a tort action for battery.117

Professor Swan contends that the “relatively low numbers of homicides against police officers suggest that this is already an area of high deterrence.”118 However, she notes that police suffer 16,000 on-the-job assaults per year that lead to physical injuries. 119 The number of assaults themselves reached a ten-year high of 79,000 in 2023.120 Swan assures readers that many of these thousands of assaults result in “relatively minor injuries.”121 That calculation still leaves many thousands that do not. Also, small injuries are the ones least likely to be deterred by the criminal law.122 Police may rightly be reluctant to make arrests for minor crimes given the severity of criminal punishment and the limited availability of resources to prosecute crimes. For instance, during recent protests, no criminal charges were pursued in many instances despite video evidence showing protestors deliberately throwing objects at police123—straightforward batteries actionable under state law. Professor Swan counsels that certainty of punishment in encounters with police is important to deterrence. But that certainty (or at least a high likelihood) will only be achieved with the help of the civil law.

If criminal law is the only tool police can use to deter minor or less culpable harms, they can, of course, seek resources and political buy-in to prosecute more people. But all of the concerns about power imbalances and overly harsh or unfair treatment apply with greater force to arrest and prosecution than to civil lawsuits. Indeed, one advantage of recognizing tort claims for individual officers is that police would not have to use their police powers for what are more trivial and essentially private harms. Judge Guido Calabresi sees the greater use of tort law as a sign of progress. As societies become more social-democratic, tort law’s liability rule “become[s] one of the dominant elements in the legal structure.”124 Professor Swan’s proposal would make arrest and prosecution—the most threatening and demeaning aspects of state power—the sole means of redress for minor acts of violence, negligence, or harassment.

Criminal prosecutions are also inadequate mechanisms for accountability because they do not provide compensation to the victim. Professor Swan suggests a workers’ compensation system as an alternative. However, a no-fault compensation scheme in this context would face the same challenges that plague many others. Workers’ compensation systems do not provide adequate deterrence; rather, they may cause a sizable increase in worker accidents.125 Other no-fault compensation systems, such as no-fault auto insurance, also seem to cause a higher rate of injuries and fatalities.126 In addition, these compensation systems alone consistently provide much lower levels of compensation than do systems combined with tort law, which is why both approaches are pursued in other contexts.127 Damages for items such as loss of consortium and emotional distress are particularly neglected in compensatory schemes. Without an accountability rationale for the payouts, recipients of compensation funds appear to be welfare recipients, which undermines social acceptance and compensation levels even further.128

B. Deterring Violence Against Police Improves Political Participation and Police-Community Interactions

Professor Swan is concerned that civil lawsuits brought by police plaintiffs, even if they deter tortious conduct against police, ultimately dampen citizens’ political participation and worsen the relationship between police and the community.129 The empirical support for this position is exceedingly weak. Remarkably, The Plaintiff Police offers no support for the key claim that “[w]hen individuals have a negative encounter with a police officer, and that police officer then goes on to sue them, the problem of political withdrawal is exacerbated.”130 The article anticipates a drop in political participation based on some studies related to arrests or “inappropriate stops.”131 The only “evidence” of a chilling effect created by civil lawsuits is a claim that in 1993 a Seattle police officers’ guild filed defamation claims against six civilians who had previously filed police complaints.132 Although the complaints were dismissed in internal procedures (a footnote tells us), the defamation claims nevertheless are said to have caused a seventy-five percent drop in complaints over the next six months.133 But a search for the baseline data of that statistic reveals that the claimed data is itself a mirage. The Plaintiff Police cites to a 1998 Human Rights Watch article,134 which in turn cites to a political screed designed to destabilize the CIA,135 which cites to (1) a Seattle Police Department Investigation audit report that provides no support whatsoever for the 75% claim, and (2) a 1995 Seattle newspaper article that contains no data at all.136 The underlying question in the Washington Supreme Court—an important one—was whether absolute or qualified privilege attached to a civilian’s defamatory claim about an officer made with actual malice, by a doctor who had been given a speeding ticket.137 Defamation cases, though, are already very difficult for police plaintiffs, or any public officials, to bring. They are already subject to common-law privileges and constitutional protections, as well as anti-SLAPP rules in most states.138 Professor Swan also recites the facts of a case in which a police officer countersued the estate of a decedent that the officer had shot.139 She concludes that political participation would likely decline in a situation like this, even though the article previously stated that the claim was “unusual,” “social media lit up with shock” over the case, and the civilian plaintiff was awarded over one million dollars by the jury, while they found for the officer on the countersuit but awarded him no damages.140

To be sure, there is not a great amount of relevant evidence for Professor Swan, or for us, to draw on.141 But we think the prediction that claims by injured police deter political participation and community relationships is wrong for several reasons.

First, tort liability may actually encourage greater participation in political protests. There is credible research finding that people stop attending protests when a radical fringe of the protest movement engages in violence.142 So, if protest attendance is a good measure of political participation, deterring protestor violence through tort liability (as well as real-time crowd control) could foster engagement. Indeed, even the protest movement that Professor Swan focuses on—the BLM movement—is well-served by effective deterrents against violence. For political organizations opposed to racism, public support declines when members engage in violence.143 And the rules cannot be crafted to deter violent protests for some causes but not for others. The First Amendment demands that any rules set are viewpoint-neutral.144

Moreover, if civil lawsuits can help reduce violence against police officers—at protests or elsewhere—then they can relieve the tension that plagues police-civilian encounters. This is because a decrease in assaults on police officers could reduce officers’ fears about interacting with civilians. Policing is a dangerous and demanding job: in 2019, more than 56,000 police officers in the United States were physically assaulted, and 48 were killed.145 In 2023, assaults reached 79,000, and there were 60 line-of-duty felonious deaths.146 These experiences lead to physical and psychological distress,147 and they may make the job less attractive to the skilled workforce.148 A reduction in violence—by both civilians and fellow officers—would help police departments recruit higher-quality, more professional employees that are necessary to modernize policing.149

Meritorious lawsuits, and even occasional frivolous lawsuits (if filed by police at rates equivalent to other plaintiffs), are unlikely to hurt police-community relationships, even if they don’t help them. And Professor Swan presents no evidence that police suits have been particularly subject to abuse. To the contrary, the smattering of anecdotes Professor Swan recounts tends to show that the current litigation system is able to weed out meritless cases without additional tools.150 Consider one of the examples from her article, in which an officer filed a slip-and-fall suit against a homeowner after responding to a call. Professor Swan says: “Even in less politically fraught contexts—like an officer slipping on a puddle after responding to a 911 call about a drowning child who is grievously injured—a plaintiff police suit is likely to be experienced as a difficult moment in one’s relationship with the city.”151 In the end, the officer herself dismissed the claim and was also fired from her job after a public outcry over the suit.152

Although it’s not entirely clear from Professor Swan’s discussion, we doubt that this moment would be experienced as a serious blow to police-community relations if the officer did end up saving the child, regardless of the suit’s merits. Moreover, it will often be private insurance that pays for such liability. Had it been a neighbor who attempted to rescue the child, the suit could surely have been brought. But the actual outcome—dismissal and termination—suggests that significant practical hurdles to officers’ suits already exist without the addition of a complete bar to suit.

Conclusion

How is it that our perception of police-initiated tort suits differs so greatly from Professor Swan’s, and from the other torts and policing scholarship? All of us need better empirical studies and greater examination of the large and varied suits that comprise officer injury claims. Yet we are also concerned that a particular social narrative is undermining both the descriptive and normative work in legal scholarship in this area.

The Plaintiff Police creates a dichotomy between “raced, marginalized, and gendered” civilian defendants and powerful “enforcer” police plaintiffs. This binary assumption is increasingly inaccurate. Trends in policing undermine an identity-based approach to categories of civilians and police. American police forces are increasingly diverse.153 A Pew Center survey found that in 2013 (the most recent year for which they had data), 27% of officers in America were racial or ethnic minorities. Black Americans were represented in proportion to their share of the population (about 12%), and Hispanic Americans constituted 12% of the police force.154 Modern police forces are not only racially diverse but also recruited from working and lower-middle class backgrounds.155 In many major cities, police forces are broadly representative of the communities they serve.156

Further, the dichotomous framing portrays police officers and communities of color as antagonists in a longstanding group conflict.157 To be sure, this dynamic is real and deserves continued attention.158 However, the zero-sum framing—that deprivations for police are good for communities of color—creates more layers of injustice. For example, twenty-nine percent of the Capitol Police Force is Black.159 A rule that would block suit and recovery by the 140 Capitol Police officers who were beaten, sprayed with chemical irritants, crushed by the crowd, assaulted, and taunted during the January 6th riots would not protect “raced, marginalized and gendered people”—rather, the bar to suit would compound those officers’ injuries.

The theory of an accountability mismatch in which “police can sue with relative ease” and injured civilians can rarely obtain civil remedies for police abuses is neither supported nor sound.160 Claims of police immunity from tort and civil-rights claims have been exaggerated to almost mythical proportions. Numerous causes of action, thousands of claims, and hundreds of millions of dollars paid in settlements and judgments (in New York City in 2024 alone) are dismissed as equivalent to no cause of action or recovery at all.161 We have no doubt that more and different legal remedies to police violence are appropriate, and that some court doctrines are flawed. But it is time to think about the political, analytical, and rhetorical effects of academics’ deliberate blindness to the array of civil remedies that can be, and are, frequently and successfully deployed by individuals in cases of police misconduct.

In one section of her article, Professor Swan thoughtfully articulates officers’ interests in access to courts, compensation, and deterrence.162 However, she never incorporates those interests into the rule she proposes.163 How have we gotten to a place in which police forces have been demonized to such an extent that it can be argued on the pages of this prestigious Journal that even a deliberate attempt to kill an officer might merit no civil legal remedy for its human victim?164 In her discussion of why police should be singled out for adverse treatment in tort law, Professor Swan quotes a memorable comment from an online forum: “[T]here’s a reason nobody’s ever made a song called f*** the fire department.”165 The quote is a reminder of the unique power and abuses of American police forces, and a validation of the hostility against them. However, police officers are not merely the historical power and abuses of “the police” writ large. They are also human workers in dangerous jobs who are entitled to others’ care for their safety and well-being. There’s a reason that no court has yet made “f*** the police” into a tort doctrine. We hope they never will.

Ellen M. Bublick is Foundation Professor of Law and Civil Justice, Sandra Day O’Connor College of Law at Arizona State University. Jane R. Bambauer is Professor of Law, Eminent Scholar, and Marion B. Brechner First Amendment Project Director, University of Florida. Thanks to Ethan Schafer and Jordyn Tye for careful research and valuable suggestions, to Samuel Beswick, Charles Capps, Courtney Caputo, James Goudkamp, Connie Gould, Jonathan Green, David Jacobs, Elizabeth Kness, Ben McJunkin, Sandy Steel, Zoë Sinel, and Sarah L. Swan for their helpful conversations and feedback on earlier drafts, and to the editors of the Yale Law Journal, Matthew M. Beck, Beatrice L. Brown, Lily Moore-Eissenberg, Deja R. Morehead, and Paige E. Underwood, for their invitation to write this Response and for their important feedback and edits at every stage.