Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution
![handle is hein.journals/frdurb28 and id is 601 raw text is: WHY CIVIL RIGHTS LAWSUITS DO NOT
DETER POLICE MISCONDUCT: THE
CONUNDRUM OF INDEMNIFICATION AND
A PROPOSED SOLUTION
Richard Emery and Ilann Margalit Maazel*
In thousands of cases around the country, civil rights plaintiffs
successfully sue police officers for violating the Constitution. Yet,
day in and day out, police officers make arrests without probable
cause, use excessive force, deny arrestees medical treatment, and
otherwise violate the Constitution with near impunity. Why don't
civil lawsuits deter this reprehensible conduct?
The answer, this essay posits, lies in the conundrum of
indemnification.1
THE CONUNDRUM OF INDEMNIFICATION
New York City represents and indemnifies police officers in the
overwhelming majority of civil rights cases.2 The city regularly in-
demnifies police officers regardless of whether they acted inten-
tionally, recklessly, or brutally; whether or not they violated
federal or state law; or whether or not they violated the rules and
* Richard Emery (J.D. Columbia, 1970; B.A. Brown University, 1967) is a se-
nior partner at Emery Cuti Brinckerhoff & Abady PC, and has represented victims of
police misconduct throughout the country, arguing cases before the highest courts at
both the state and federal level.
Ilann Margalit Maazel (J.D. University of Michigan, 1997; B.A. Harvard Univer-
sity, 1993) is a lawyer at Emery Cuti Brinckerhoff & Abady PC, and is the former law
clerk to the Hon. John M. Walker of the United States Court of Appeals for the
Second Circuit. Mr. Maazel previously worked for the firm Paul, Weiss, Rifkind,
Wharton & Garrison, as well as the Federal Public Defenders in the Eastern District
of New York.
1. Although this essay explores the indemnification issue in New York City,
many other jurisdictions provide for indemnification of police and other municipal
employees. E.g., N.Y. GEN. MUN. LAW § 50-1 (McKinney 1999) (Nassau County in-
demnification of police officers); Hennessy v. Robinson, 985 F. Supp. 283 (N.D.NY.
1997) (discussing indemnification in Oneida County); N.Y. PUB. OFF. LAW § 18 (Mc-
Kinney 1988) (general New York State indemnification statute for public employees).
2. According to Human Rights Watch, Officers themselves do not have to pay
personally in civil lawsuits; the city almost always indemnifies the officer and pays. In
the rare case in which the city has not covered the officer, the PBA [Patrolmen's
Benevolent Association, a police officers' union] has done so. HUMAN RIGHTS
WATCH, SHIELDED FROM JUSTICE: POLICE BRUTALITY AND ACCOUNTABILITY IN THE
UNITED STATES: NEW YORK: CIVIL LAWSUITS (1998).
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Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution
Contact us for annual subscription options:
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