Examining the “Back the Blue Act”

June 2, 2017
Guest Post

by Stephen Rushin, Assistant Professor of Law, University of Alabama School of Law

While many have welcomed the increased national interest in police accountability, critics, including President Donald Trump and police unions, have warned of a so-called “war on cops.”  To their credit, there is evidence that ambush killings of police officers increased in 2016, as did the number of total police officers killed in fatal shootings. But it is difficult to know whether these numbers are part of a larger pattern, or merely a statistical aberration.

Sen. John Cornyn (R-Texas) and Rep. Ted Poe (R-Texas) do not want to take any chances. In the “Back the Blue Act,” the two legislators (along with several co-sponsors) propose several alterations to federal law meant to protect police officers. Ultimately, though, there is serious reason to doubt whether this measure would make local law enforcement substantially safer. And it is a virtual certainty that, if passed, this law would severely hamper efforts to hold police officers accountable for wrongdoing.

The measure would create new federal crimes for the assaulting or killing of federally funded law enforcement officers. It would limit habeas relief for some cases involving the killing of a police officer. And it would expand the federal death penalty to cases involving the killing of police officers. There is a lot to say about this bill—much of which has already been covered in depth by other media outlets or advocacy organizations.

Nevertheless, I want to focus on how this bill would have serious implications for 42 U.S.C. § 1983—the statute that provides private litigants with the ability to bring civil suits against police officers (and in some cases their employers) that violate their constitutional rights. As Human Right Watch points out:

The bill says that if a government official violates a person’s rights and that person was doing something “in the course of,” “related to,” or “as a result of” commission of a felony or crime of violence, then that person may only recover out-of-pocket expenses, and may not recover attorney’s fees. Felonies include a broad range of conduct, much of which is not violent or dangerous. Under this section, “crime of violence” includes misdemeanors that only damage property or involve threats to use force. “In the course of” and “related to” are extremely vague terms that could apply to a great deal of conduct, including merely being present at a crime.

Such a proposal would severely limit the usefulness of § 1983. To be sure, the limitations of § 1983 litigation as a regulatory tool are well documented. As it currently stands, police officers already benefit from the qualified immunity doctrine, which protects officers from being held financially responsible for unconstitutional misconduct unless their actions violated clearly established law. Police officers themselves also rarely feel the financial effects of § 1983 litigation, as empirical evidence suggests that their employers almost always indemnify them. And some have worried that cities do not properly internalize the costs of § 1983 litigation in a way that contributes to real reform in police policies.

But despite all of these limitations, § 1983 remains a critically important tool in promoting police accountability. The “Back the Blue Act” would severely curtail the effectiveness of § 1983. For one thing, by preventing many plaintiffs from obtaining attorneys’ fees in § 1983 suits, this Act would effectively prevent poorer plaintiffs from obtaining representation. This, in turn, could reduce the number of § 1983 claims, limiting its deterrent effect. This proposal would also dramatically reduce the amount of money that certain victims of police misconduct could obtain in a § 1983 case. Imagine, for example, if a police officer unjustifiably shoots and kills a suspect involved in a non-violent felony offense. Under the text of the “Back the Blue Act,” the victim’s family may only be entitled to recover out of pocket expenses, like funeral expenses.

Such revisions to § 1983 may severely hamper the measure’s effectiveness, and worse, may implicitly sanction what Justice Sonia Sotomayor has called a “shoot-first, think later approach” to policing.