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POLICE INDEMNIFICATION
JOANNA C. SCHWARTZ*
This Article empirically examines an issue central to judicial and scholarly debate
about civil rights damages actions: whether law enforcement officials are financially
responsible for settlements and judgments in police misconduct cases. The Supreme
Court has long assumed that law enforcement officers must personally satisfy settlements and judgments, and has limited individual and government liability in civil
rights damages actions—through qualified immunity doctrine, municipal liability
standards, and limitations on punitive damages—based in part on this assumption.
Scholars disagree about the prevalence of indemnification: Some believe officers
almost always satisfy settlements and judgments against them, and others contend
indemnification is not a certainty.
In this Article, I report the findings of a national study of police indemnification.
Through public records requests, interviews, and other sources, I have collected
information about indemnification practices in forty-four of the largest law enforcement agencies across the country, and in thirty-seven small and mid-sized agencies.
My study reveals that police officers are virtually always indemnified: During the
study period, governments paid approximately 99.98% of the dollars that plaintiffs
recovered in lawsuits alleging civil rights violations by law enforcement. Law
enforcement officers in my study never satisfied a punitive damages award entered
against them and almost never contributed anything to settlements or judgments—
even when indemnification was prohibited by law or policy, and even when officers
were disciplined, terminated, or prosecuted for their conduct. After describing my
findings, this Article considers the implications of widespread indemnification for
qualified immunity, municipal liability, and punitive damages doctrines; civil rights
litigation practice; and the deterrence and compensation goals of 42 U.S.C. § 1983.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. ASSUMPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Qualified Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Municipal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

887
892
892
892
895
897

* Copyright © 2014 by Joanna C. Schwartz, Assistant Professor of Law, University of
California, Los Angeles, School of Law. For helpful conversations and comments, thanks
to Asli Bâli, Joel Berger, Peter Bibring, Karen Blum, Sam Bray, Ann Carlson, Maureen
Carroll, Scott Cummings, Joe Doherty, Ingrid Eagly, Theodore Eisenberg, Richard Fallon,
Barry Friedman, Marc Galanter, Robert Goldstein, Laura Gómez, Allison Hoffman, Mark
Iris, John Jeffries, Jerry López, Margo Schlanger, Peter Schuck, Seana Shiffrin, David
Sklansky, Jon Varat, Jordan Woods, Steve Yeazell, Noah Zatz, and participants in workshops at University of California, Berkeley, School of Law; University of California, Los
Angeles, School of Law; and RAND Institute for Civil Justice. Thanks also to Jack
Cambou, Brian Cardile, Tommy Huynh, Karen Kwok, Madeline Morrison, Vicki Steiner,
and the expert research staff at UCLA’s Hugh & Hazel Darling Law Library for excellent
research assistance, and to Amelia Frenkel, Daniel Michaeli, Calisha Myers, Anthony
Ruiz, and the editors of the New York University Law Review for their editorial assistance.
885

R
R
R
R
R
R

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B. Scholarship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Prevalence of Indemnification . . . . . . . . . . . . . . . . . .
C. Indemnification of Punitive Damages Awards . . . . . . .
D. The Practical Irrelevance of Indemnification
Prohibitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Settlement in Lieu of Indemnification . . . . . . . . . . .
2. Indemnification of Punitive Damages After
Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. Indemnification of Officers Disciplined, Terminated,
and Prosecuted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F. Exceptions to the Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
G. Tactical Benefits of Withholding Indemnification
Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
H. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. IMPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Qualified Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Municipal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Compensation and Deterrence. . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX A: INDEMNIFICATION OF SETTLEMENTS AND
JUDGMENTS IN CIVIL RIGHTS CASES (2006–2011). . . . . . .
APPENDIX B: INDEMNIFICATION OF SETTLEMENTS AND
JUDGMENTS IN ALL TYPES OF CASES (2006–2011) . . . . . .
APPENDIX C: PERCENTAGE OF TOTAL LITIGATION COSTS
SPENT ON CIVIL RIGHTS CASES (2006–2011) . . . . . . . . . . . .
APPENDIX D: PERCENTAGE OF CIVIL RIGHTS CASES
RESOLVED IN PLAINTIFFS’ FAVOR (2006–2011) . . . . . . . . .
APPENDIX E: INDEMNIFICATION OF SETTLEMENTS AND
JUDGMENTS IN SMALLER DEPARTMENTS IN ALL TYPES
OF CASES (2006–2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX F: INDEMNIFICATION OF PUNITIVE DAMAGES IN
CIVIL RIGHTS CASES (2006–2011) . . . . . . . . . . . . . . . . . . . . . .
APPENDIX G: JURISDICTIONS WITH INCOMPLETE DATA . . . . . . . .
APPENDIX H: CASES IN WHICH OFFICERS WERE REQUIRED TO
CONTRIBUTE (2006–2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX I: SOURCE TABLE FOR RESPONSIVE LARGER
JURISDICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

899
902
902
912
917

R

918
919

R

920

R

923
925

R

931
936
937
938
938
943
947
949
952
960

R

962

R

965

R

967

R

969

R

971

R

974
976

R

978

R

982

R

R
R
R
R

R

R

R
R
R
R
R
R
R
R
R

R

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APPENDIX J: SOURCE TABLE FOR LARGER JURISDICTIONS
THAT DID NOT PROVIDE RESPONSIVE INFORMATION . . 997
APPENDIX K: SOURCE TABLE FOR SMALLER JURISDICTIONS . . . 1001
INTRODUCTION
This Article empirically examines an issue central to judicial and
scholarly debate about civil rights damages actions: whether law
enforcement officials are financially responsible for settlements and
judgments in police misconduct cases.1
Civil rights doctrine2 relies heavily on the assumption that police
officers pay settlements and judgments out of their own pockets.
Qualified immunity protects a law enforcement officer from liability,
even if he has violated the plaintiff’s constitutional rights, if he did not
violate “clearly established law”3—a standard that, according to the
Supreme Court, protects “all but the plainly incompetent or those
who knowingly violate the law.”4 The Supreme Court’s qualified
immunity doctrine is designed to protect against overdeterrence
because, the Court has assumed, the “fear of being sued will ‘dampen
the ardor of all but the most resolute, or the most irresponsible [public
officials] in the unflinching discharge of their duties.’ ”5
1 By “police misconduct cases,” I refer to cases brought against law enforcement
agents and agencies under 42 U.S.C. § 1983 and, additionally or in the alternative, cases
brought alleging corresponding state law torts of assault, battery, false imprisonment,
intentional infliction of emotional distress, and the like. This study does not focus on other
types of litigation, including automobile accidents and internal employment actions
brought by officers, although my data suggests that the findings would be the same for all
types of cases in which law enforcement officers are named as defendants. See infra notes
129–30 and accompanying text (finding that officers almost never contribute to settlements
in any type of case); Appendix B (setting out the amount paid to plaintiffs in all types of
cases, not only civil rights cases, and the amount contributed by officers to those
settlements and judgments in large jurisdictions that provided such information); see also
note 131 and accompanying text (finding that officers did not contribute to settlements or
judgments in any type of case in the small and mid-sized jurisdictions in my study).
2 By “civil rights doctrine,” I refer to the doctrine that governs claims brought under
42 U.S.C. § 1983. This Article does not address claims brought against federal actors,
although the Supreme Court also assumes that federal agents—like local law enforcement
officers—are financially responsible for settlements and judgments entered against them.
See generally Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public
Officials’ Individual Liability Under Bivens, 88 GEO. L.J. 65 (1999) (describing the “legal
fiction” of individual accountability that underlies Supreme Court jurisprudence and
concluding that most federal officers are indemnified).
3 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
4 Malley v. Briggs, 475 U.S. 335, 341 (1986).
5 Harlow, 457 U.S. at 814 (alteration in original) (quoting Gregoire v. Biddle, 177 F.2d
579, 581 (2d Cir. 1949)). Officers may fear both financial liability and other, nonfinancial
effects of being named a defendant. See infra notes 267–82 and accompanying text
(discussing the nonfinancial effects of civil litigation on officers).

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There is no vicarious liability against municipalities when their
officers violate the law; instead, to recover against a city, plaintiffs
must show their rights were violated as the result of the city’s unconstitutional policy, practice, or custom.6 Although the Court has concluded that there is no respondeat superior liability for § 1983 claims
based primarily on the statute’s legislative history,7 the resulting complex and rigorous municipal liability standards make less sense if governments, in practice, assume financial responsibility for their
employees’ legal liabilities.
Punitive damages doctrine also relies in part on the assumption
that officers personally satisfy judgments against them. Although a
plaintiff can recover punitive damages against a law enforcement
officer if he acted with “reckless or callous indifference to [the plaintiff’s] federally protected rights,”8 she cannot seek punitive damages
against the city for civil rights violations.9 Punitive damages against
municipalities are prohibited in part because, the Court has reasoned,
“[n]either reason nor justice suggests that such retribution should be
visited upon the shoulders of blameless or unknowing taxpayers.”10
Even though key civil rights doctrines rely on the assumption that
officers personally satisfy settlements and judgments entered against
them, we have little information about whether this assumption has
any basis in reality. Two decades-old studies of civil rights actions litigated in two districts found few instances in which officers were not
indemnified.11 Professor John Jeffries informally polled police officers
he trained at the FBI Academy for over twenty years, and none
reported knowing anyone who had been denied indemnification.12
But Peter Schuck and others have pointed to variation in state indemnification statutes as evidence that indemnification is “neither certain
6 See David Jacks Achtenberg, Taking History Seriously: Municipal Liability Under 42
U.S.C. § 1983 and the Debate over Respondeat Superior, 73 FORDHAM L. REV. 2183,
2187–91 (2005) (describing municipal liability theories).
7 See infra notes 47–50 and accompanying text (discussing the Court’s reliance on the
legislative history of § 1983 in this context).
8 Smith v. Wade, 461 U.S. 30, 56 (1983).
9 City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
10 Id. at 267.
11 See Lant B. Davis, John H. Small & David J. Wohlberg, Suing the Police in Federal
Court, 88 YALE L.J. 781, 810–12 (1979) (finding, in a 149-case sample of § 1983 lawsuits
brought in the District of Connecticut from 1970 to 1977, that “[t]he individual defendants
were almost always indemnified” and, “in almost every case, the individual defendant
suffered no financial loss because of the suits”); Theodore Eisenberg & Stewart Schwab,
The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 686 (1987) (finding
no evidence of officers paying directly for a judgment in the court records of civil rights
cases filed in the Central District of California in 1980 and 1981).
12 John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA.
L. REV. 47, 50 & n.16 (1998).

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nor universal.”13 And some have suggested that officers disciplined,
terminated, or criminally prosecuted would likely have to pay settlements and judgments in lawsuits arising from their misdeeds.14
A number of scholars have noted the lack of definitive information about police indemnification and called for more study of the
issue.15 Richard Fallon has observed that, “roughly thirty years after
Harlow”—a decision that extended qualified immunity to police
officers based in part on the assumption that they were personally
responsible for settlements and judgments against them—“no good
empirical study has sought to establish the pervasiveness and scope of
government indemnification.”16 As Professor Fallon has written,
“[t]his gap in empirical knowledge crucially handicaps instrumental
analysis” of the law.17
This Article aims to fill this gap. It reports the results of a study of
police indemnification practices across the country. I sent public
records requests to the nation’s seventy largest law enforcement agencies and to seventy small and mid-sized agencies, seeking information
about the amount spent in settlements and judgments over the sixyear period from 2006 to 2011, as well as information about any
instances in which officers were required to financially contribute to
any of these payments. I supplemented responses to these requests
with telephone interviews and e-mails with dozens of government officials and attorneys in the responding jurisdictions.
After pursuing responses to these requests for over a year, I was
able to gather information about litigation payments and indemnification decisions in forty-four of the seventy large departments and
thirty-seven of the small and mid-sized departments I queried. These
jurisdictions include twelve of the twenty largest departments nationwide (as well as significantly smaller departments) and employ
approximately 20% of law enforcement officers across the country.
The number of sworn officers employed by the responsive departments ranges from 1 to over 36,000. The responsive departments are
13 PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL
WRONGS 85 (1983); see also infra notes 75–76 and accompanying text.
14 See infra note 77 and accompanying text (describing this hypothesis).
15 See, e.g., Jeffries, supra note 12, at 50 n.14 (citing Davis, Small & Wohlberg, supra
note 11, and noting that “[a]side from this useful but dated work, there is a dearth of
scholarly attention to the question of who actually pays § 1983 claims”); Marc L. Miller &
Ronald F. Wright, Secret Police and the Mysterious Case of the Missing Tort Claims, 52
BUFF. L. REV. 757, 760 (2004) (“[T]he most important and revealing features of litigation
against the police [are] hidden in the dark: who pays, and who is held accountable for the
payments?”).
16 Richard H. Fallon, Jr., Asking the Right Questions About Officer Immunity, 80
FORDHAM L. REV. 479, 496 (2011).
17 Id.

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located in cities, counties, and states that span the political spectrum.
And they vary significantly in their formal policies regarding officer
indemnification.
Although my data has some arguably inevitable limitations, it
resoundingly answers the question posed: Police officers are virtually
always indemnified. Between 2006 and 2011, in forty-four of the
country’s largest jurisdictions, officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil
rights damages actions resolved in plaintiffs’ favor, and their contributions amounted to just .02% of the over $730 million spent by cities,
counties, and states in these cases. Officers did not pay a dime of the
over $3.9 million awarded in punitive damages. And officers in the
thirty-seven small and mid-sized jurisdictions in my study never contributed to settlements or judgments in lawsuits brought against them.
Governments satisfied settlements and judgments in police misconduct cases even when indemnification was prohibited by statute or
policy. And governments satisfied settlements and judgments in full
even when officers were disciplined or terminated by the department
or criminally prosecuted for their conduct.
My findings of widespread indemnification undermine assumptions of financial responsibility relied upon in civil rights doctrine.
Although the Court’s stringent qualified immunity standard rests in
part on the concern that individual officers will be overdeterred by the
threat of financial liability, actual practice suggests that these officers
have nothing reasonably to fear, at least where payouts are concerned.18 Although the Court’s municipal liability doctrine rests on
the notion that there should not be respondeat superior liability for
constitutional claims, blanket indemnification practices are functionally indistinguishable from respondeat superior. And although the
Court’s prohibition of punitive damages against municipalities is
rooted in a sense that imposition of punitive damages awards on taxpayers would be unjust, my study reveals that taxpayers almost always
satisfy both compensatory and punitive damages awards entered
against their sworn servants.
In this Article, I do not endorse new standards for qualified
immunity, municipal liability, or punitive damages: Before redesigning
18 Available evidence indicates that lawsuits also have limited nonfinancial effects on
officers. See generally Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of
Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023 (2010) (finding
that law enforcement agencies rarely gather and analyze information from lawsuits brought
against them and their officers); see also infra notes 279–82 and accompanying text
(describing studies indicating that the threat of being sued has little effect on officers’
behavior).

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civil rights doctrine to best achieve the compensatory and deterrence
goals of § 1983, one would need to resolve empirical and normative
questions beyond the scope of this Article.19 But even without
resolving those foundational questions, it seems clear that civil rights
doctrine should not rely on counterfactual assumptions about officers’
liability exposure. This Article, therefore, suggests some adjustments
that would better align civil rights doctrine with evidence of widespread police indemnification.
The widespread indemnification of police officers also has implications for civil rights litigation practice. Through my research, I
found multiple instances in which government attorneys used the possibility that they would deny officers indemnification to gain settlement leverage, limit punitive damages verdicts, and reduce punitive
damages awards after trial, only to indemnify officers when the cases
were resolved.20 Civil rights litigation practice—like civil rights doctrine—should not rely on flawed empirical assumptions about the
likelihood of indemnification. Accordingly, litigants should be allowed
to counter the tactical use of possible indemnification denials with evidence of widespread indemnification.21
Widespread indemnification also impacts the extent to which
§ 1983’s goals of compensation and deterrence are achieved. Indemnification ensures that plaintiffs are compensated, but dampens the
deterrent effect of lawsuits on officers. One might think that police
misconduct lawsuits would nonetheless achieve § 1983’s deterrence
goals by placing financial pressure on government entities to implement systemic police reform. Yet the general consensus is that governments do not take decisive enough action to curb misconduct or
manage their officers.22 This Article offers suggestions to tighten the
link between lawsuits and law enforcement decisionmaking in a world
of near certain and universal police indemnification.23
The remainder of this Article proceeds as follows. Part I
describes doctrinal and scholarly assumptions about the prevalence of
indemnification. Part II describes the methodology and findings of the
study. And Part III considers the implications of these findings for
civil rights doctrine and practice, and the deterrence and compensation goals of § 1983.
19 See infra notes 134–37 and accompanying text, notes 254–57 and accompanying text,
and the Conclusion for discussion of some of these open questions.
20 For a description of these practices, see infra Part II.G.
21 For a discussion of these suggestions, see infra Part III.B.
22 See infra note 337 and accompanying text.
23 For a discussion of these suggestions, see infra Part III.C.

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I
ASSUMPTIONS
A. Doctrine
The assumption that law enforcement officers are personally
responsible for settlements and judgments in police misconduct cases
underlies several judicial doctrines key to the litigation of civil rights
damages actions.24
1. Qualified Immunity
The Supreme Court expects compensatory damages to deter
wrongdoing by government employees.25 Indeed, the Court believes
that the threat of financial liability may overdeter: “When officials are
threatened with personal liability . . . they may well be induced to act
with an excess of caution or otherwise to skew their decisions in ways
that result in less than full fidelity to the objective and independent
criteria that ought to guide their conduct.”26 A police officer should
not, the Court has explained, be forced to “choose between being
charged with dereliction of duty if he does not arrest when he has
probable cause, and being mulcted in damages if he does.”27 Accordingly, the Court crafted qualified immunity “to shield [officers] from
undue interference with their duties and from potentially disabling
24 This Article does not answer why civil rights doctrine relies on this assumption. One
possible explanation is that few states had indemnification statutes in 1961, when the
Supreme Court made clear in Monroe v. Pape, 365 U.S. 167, 192 (1961), that individuals
could sue government officials under § 1983. See John P. Taddei, Note, Beyond Absolute
Immunity: Alternative Protections for Prosecutors Against Ultimate Liability for § 1983
Suits, 106 NW. U. L. REV. 1883, 1914–15 (2012) (describing the increasing number of
indemnification statutes since 1976). Fewer indemnification statutes does not necessarily
mean, however, that indemnification was less frequent during this period—governments
may have indemnified their officers as a matter of local policy or custom. There is, in fact, a
long history of indemnification of government actors. See infra note 266 (describing a study
by James Pfander and Jonathan Hunt examining indemnification of federal agents in the
late-18th and early- to mid-19th centuries).
25 See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 727
(1999) (Scalia, J., concurring) (“[Section 1983] is designed to provide compensation for
injuries arising from the violation of legal duties, and thereby, of course, to deter future
violations.” (citation omitted)); City of Riverside v. Rivera, 477 U.S. 561, 575 (1986)
(“[T]he damages a plaintiff recovers contributes significantly to the deterrence of civil
rights violations in the future.”); Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307
(1986) (“Deterrence . . . operates through the mechanism of damages that are
compensatory.”); Smith v. Wade, 461 U.S. 30, 50 (1983) (“[W]e assume, and hope, that
most officials are guided primarily by the underlying standards of federal substantive law—
both out of devotion to duty, and in the interest of avoiding liability for compensatory
damages.”).
26 Forrester v. White, 484 U.S. 219, 223 (1988).
27 Scheuer v. Rhodes, 416 U.S. 232, 245 (1974) (quoting Pierson v. Ray, 386 U.S. 547,
555 (1967)).

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threats of liability.”28 The Supreme Court has explained that qualified
immunity balances “the importance of a damages remedy to protect
the rights of citizens” and “the need to protect officials who are
required to exercise their discretion and the related public interest in
encouraging the vigorous exercise of official authority.”29
The Court first balanced these competing interests by allowing
dismissal on qualified immunity grounds—even if a defendant had
violated the plaintiff’s constitutional rights—if the defendant could
show both that his conduct was objectively reasonable and that he
held a “good-faith” belief that his conduct was proper.30 The Court
later eliminated the subjective element for fear that a defendant’s
good faith could not be resolved without discovery.31 Now, a defendant is entitled to qualified immunity unless his conduct violates
“clearly established law.”32 A law is “clearly established” if there is
controlling precedent or a consensus of cases with similar holdings,33
or, in limited circumstances, if the conduct is obviously
unconstitutional.34
Qualified immunity decisions have been described as “one of the
most morally and conceptually challenging tasks federal appellate
judges routinely face.”35 The law is not clear about how factually similar a prior decision must be to the instant case in order for the law to
be “clearly established.”36 There is no clear guidance about whether
and when judges should decide the merits of a plaintiff’s claim before
assessing whether the defendant is entitled to qualified immunity.37
28

Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).
Id. at 807 (quoting Butz v. Economou, 438 U.S. 478, 504–06 (1978)).
30 Scheuer, 416 U.S. at 247–48.
31 See Harlow, 457 U.S. at 817 (“Judicial inquiry into subjective motivation . . . may
entail broad-ranging discovery and the deposing of numerous persons, including an
official’s professional colleagues. Inquiries of this kind can be peculiarly disruptive of
effective government.”).
32 Id. at 818.
33 Wilson v. Layne, 526 U.S. 603, 617 (1999).
34 See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (finding the application of a law to
similar facts is not required for a law to be “clearly established” when Supreme Court
precedent “gave respondents fair warning that their conduct violated the Constitution”).
35 Charles R. Wilson, “Location, Location, Location”: Recent Developments in the
Qualified Immunity Defense, 57 N.Y.U. ANN. SURV. AM. L. 445, 447 (2000).
36 See id. at 447–48 (explaining that there is “remarkably little consensus” on how
courts should determine when the law is “clearly established”).
37 The Court, in Saucier v. Katz, required judges to decide whether an officer’s conduct
was unconstitutional before deciding whether the unconstitutionality of his conduct was
clearly established. This was, the Court explained, “the process for the law’s elaboration
from case to case.” 533 U.S. 194, 201 (2001). Eight years later, the Court held that this twostep rule was not mandatory. Pearson v. Callahan, 555 U.S. 223 (2009). Now, it is unclear
under what circumstances judges should decide the constitutional question first. See, e.g.,
Michael T. Kirkpatrick & Joshua Matz, Avoiding Permanent Limbo: Qualified Immunity
29

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Some argue that it does not make sense to have qualified immunity
depend on whether a prior case has held the conduct unconstitutional.38 And some scholars contend that qualified immunity decisions
cannot be made without considering the facts of the case, frustrating
the Court’s goal of having the issue resolved at an early stage of
litigation.39
Another critique of qualified immunity doctrine is that it rests on
an unfounded premise—that defendants are financially responsible
for settlements and judgments entered against them. The Supreme
Court has taken what it calls a “functional approach to immunity
questions,” in that the Justices purport to “examine the nature of the
functions with which a particular official or class of officials has been
lawfully entrusted, and [they] seek to evaluate the effect that exposure
to particular forms of liability would likely have on the appropriate
exercise of those functions.”40 Yet the Justices appear to have relied
on little more than their own intuitions when concluding that the
threat of personal liability would have a debilitating effect on law
enforcement officers’ decisionmaking.41
Evidence that officers are virtually always indemnified would
contradict one of the foundational assumptions underlying the Court’s
qualified immunity doctrine. The Court has even obliquely suggested
and the Elaboration of Constitutional Rights from Saucier to Camreta (and Beyond), 80
FORDHAM L. REV. 643, 669–76 (2011) (describing the confusion in qualified immunity
doctrine post-Pearson).
38 See, e.g., John C. Jeffries, Jr., The Liability Rule for Constitutional Torts, 99 VA. L.
REV. 207, 256 (2013) (“It makes sense . . . to assess the reasonableness of constitutional
error in light of clearly established law. But it does not make sense to bar liability for
conduct that is both unconstitutional and unreasonable, simply because it has not
specifically been declared so in a prior decision.”).
39 See, e.g., Alan K. Chen, The Burdens of Qualified Immunity: Summary Judgment and
the Role of Facts in Constitutional Tort Law, 47 AM. U. L. REV. 1, 3 (1997) (arguing that
the Supreme Court has a “paradoxical approach to crafting qualified immunity law, which
simultaneously encourages resolution of the defense on summary judgment and shapes the
doctrine to ensure an almost inevitable factual inquiry that precludes pretrial termination
of civil rights claims”); Diana Hassel, Living a Lie: The Cost of Qualified Immunity, 64 MO.
L. REV. 123, 155 (1999) (“[Qualified immunity] is supposed to protect government actors
not only from liability but also from entanglement with litigation. The promise is often not
kept because the qualified immunity defense presents a combination of fact and law
questions that cannot be quickly disposed of prior to trial.”).
40 Forrester v. White, 484 U.S. 219, 224 (1988) (internal quotation marks omitted).
41 The Supreme Court has offered no empirical evidence to support its assertions about
the effects of the threat of liability on officers. In Anderson, Forrester, Harlow, Hope, Del
Monte Dunes, Pearson, Rivera, Scheuer, Smith, Stachura, and Wilson, discussed earlier
and below in note 42, the Court cites other Supreme Court decisions, opinions from other
courts, treatises on torts and damages, and law review articles in support of the notion that
lawsuits deter officers—or makes the assertion without citation to a supporting source.
None of the cited sources are empirical studies or cite empirical studies that support the
Court’s assumptions about the effects of lawsuits on officers’ behavior.

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that evidence of “sufficiently certain and generally available” indemnification might “justify reconsideration of the balance struck in
Harlow and subsequent cases.”42 Of course, nonfinancial burdens
associated with being named in a lawsuit may influence officers’
behavior.43 But if officers do not personally satisfy payouts, the
Court’s current, stringent qualified immunity standards—already criticized as “complicated, unstable, and overprotective of government
officers”44—have significantly weaker justification.45
2. Municipal Liability
Municipal liability doctrine is also premised in part on the
assumption that officers—not their employers—are financially
responsible for settlements and judgments in police misconduct cases.
In Monell, the Court decided that municipalities could be held liable
for constitutional violations under § 1983, but rejected respondeat
superior liability for the actions of municipal employees.46 The Court
largely based its conclusion on the legislative history of the statute and
its plain language.47 The Court additionally rejected deterrence and
insurance justifications for respondeat superior liability—the notions
that “accidents might . . . be reduced if employers had to bear the cost
of accidents” and that “the cost of accidents should be spread to the
community as a whole.”48 Members of Congress discussed both justifi42 Anderson v. Creighton, 483 U.S. 635, 641–42 & 642 n.3 (1987) (rejecting the
plaintiffs’ argument that widespread indemnification made qualified immunity unnecessary
in part because the plaintiffs “do not and could not reasonably contend that the programs
to which they refer make reimbursements sufficiently certain and generally available to
justify reconsideration of the balance struck in Harlow and subsequent cases”).
43 For a discussion of the nonfinancial effects of being named in a lawsuit, see infra
notes 267–82 and accompanying text.
44 Jeffries, supra note 38, at 250.
45 For arguments that widespread indemnification—if empirically proven—would limit
the justification for qualified immunity doctrine, see, e.g., Barbara E. Armacost, Qualified
Immunity: Ignorance Excused, 51 VAND. L. REV. 583, 587 (1998) (“[G]iven
indemnification and absent some systemic bias, incentives might be balanced such that
officials will, in fact, consider all the societal costs and benefits of their actions. If so,
governmental liability would present little or no risk of over-deterrence, making qualified
immunity unnecessary.” (citations omitted)); Fallon, supra note 16, at 497 (“[I]t might be
desirable to reconsider current doctrines that largely shield governments from direct
liability for their officials’ wrongs, especially if empirical studies were to establish that
government employers routinely indemnify their officials anyway.”).
46 See Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (“[A] local
government may not be sued under § 1983 for an injury inflicted solely by its employees or
agents.”).
47 Id. at 691 (“[T]he language of § 1983, read against the background of [its] legislative
history, compels the conclusion that Congress did not intend municipalities to be held
liable unless action pursuant to official municipal policy of some nature caused a
constitutional tort.”).
48 Id. at 693–94.

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cations for vicarious liability during debate about an amendment to
the bill that later became the Civil Rights Act of 1871 and neither
justification convinced Congress to include a provision that would
allow suits directly against governments for failure to protect citizens
against violence by private actors. As a result, the Court concluded
that these justifications were insufficient bases to impose respondeat
superior liability for municipal employees’ civil rights violations.49
Instead, the Court held, a plaintiff must show that the municipality
itself “caused” the plaintiff’s constitutional violation.50
In subsequent cases interpreting Monell, the Court created what
Justice Breyer has called a “highly complex body of interpretive
law.”51 A plaintiff seeking to establish municipal liability must show
that the municipality had an unconstitutional policy or custom of
unconstitutional violations, or that it failed to properly hire, train, or
supervise its employees.52 A plaintiff must also show that these acts
were taken with the knowledge or deliberate indifference of a “final
policymaker.”53 Current standards are exceedingly difficult to satisfy:
David Achtenberg has observed that “the standard for awarding compensatory damages against cities under § 1983 is even higher than the
standard for awarding punitive damages against private employers.
Monell confines entity liability in a manner that is unique to § 1983
and exists in no other area of the law.”54
Justices and scholars have called for reconsideration of Monell’s
prohibition of respondeat superior liability. Some challenge the
Court’s conclusion in Monell that the drafters of the Civil Rights Act
of 1871 did not contemplate vicarious liability for municipalities.55
Some raise policy arguments in favor of imposing liability on munici49 Id. at 692–94. The Court acknowledged that “[s]trictly speaking, of course, the fact
that Congress refused to impose vicarious liability for the wrongs of a few private citizens
does not conclusively establish that it would similarly have refused to impose vicarious
liability for the torts of a municipality’s employees,” but found the inference “quite
strong.” Id. at 692–93 n.57.
50 Id. at 692 & n.57 (internal quotation marks omitted).
51 Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 430 (1997) (Breyer, J., dissenting).
52 See Achtenberg, supra note 6, at 2187–91 (describing routes to municipal liability
under the Monell doctrine).
53 Pembaur v. City of Cincinnati, 475 U.S. 469, 486 (1986). As just one example of the
complexity of Monell doctrine, a municipal policy can be established when an official has
exercised “policymaking authority” but not when the official has exercised “delegated
discretionary policy-implementing authority.” Brown, 520 U.S. at 434 (Breyer, J.,
dissenting) (emphasis omitted) (citing St. Louis v. Praprotnik, 485 U.S. 112, 126–27 (1988)
(plurality opinion)).
54 Achtenberg, supra note 6, at 2191.
55 See, e.g., City of Okla. City v. Tuttle, 471 U.S. 808, 835–42 (1985) (Stevens, J.,
dissenting) (arguing that legislators would have assumed the applicability of the common
law tort doctrine of respondeat superior, barring specific provisions to the contrary);

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palities instead of individual officers.56 And some have argued that
indemnification, if prevalent, obviates the need for Monell’s heightened standard. For example, in Bryan County v. Brown, Justice
Breyer, writing for himself and Justices Ginsburg and Stevens,
observed that states’ indemnification statutes “mimic respondeat superior by authorizing indemnification of employees found liable under
§ 1983 for actions within the scope of their employment.”57 Justice
Breyer concluded that, to the extent indemnification statutes “provide
for payments from the government that are similar to those that
would take place in the absence of Monell’s limitations . . . municipal
reliance upon the continuation of Monell’s ‘policy’ limitation loses
much of its significance.”58
3. Punitive Damages
The Supreme Court’s conclusion that punitive damages should
not be assessed against municipalities in § 1983 cases similarly rests in
part on the assumption that officers are financially responsible for
damages entered against them. In Smith v. Wade, the Court held that
a plaintiff could recover punitive damages against an individual government official if the official’s conduct was “motivated by evil motive
or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.”59 In explaining this conclusion,
the majority wrote that they saw “no reason why a person whose federally guaranteed rights have been violated should be granted a more
restrictive remedy than a person asserting an ordinary tort cause of
action.”60
Yet, when deciding whether punitive damages could be awarded
against municipalities in § 1983 cases, the Court granted a more
restrictive remedy than is available in the private law context.61 In
Achtenberg, supra note 6, at 2196–212 (explaining why the historical arguments against
municipal respondeat superior are unfounded).
56 See, e.g., Catherine Fisk & Erwin Chemerinsky, Civil Rights Without Remedies:
Vicarious Liability Under Title VII, Section 1983, and Title IX, 7 WM. & MARY BILL RTS. J.
755, 796 (1999) (arguing that respondeat superior liability for municipalities would simplify
the law, impose costs on deeper-pocketed municipalities, and create incentives for
municipalities to prevent future harms).
57 Brown, 520 U.S. at 436 (Breyer, J., dissenting).
58 Id.
59 Smith v. Wade, 461 U.S. 30, 56 (1983).
60 Id. at 48–49.
61 City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (holding that
municipalities are immune from punitive damages in § 1983 cases). The majority of states
have also restricted or prohibited punitive damages awards against government entities in
all cases. See Megan K. Bannigan, Judgment Day for Public Entity Punitive Damages?
Reexamining the Law and Policy of Awarding Punitive Damages Against New Jersey Public

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reaching its conclusion that punitive damages cannot be awarded
against a municipality in § 1983 actions, the Court relied in part on
municipalities’ historical immunity from punitive damages.62 The
Court also reasoned that it made no sense to impose punitive damages
against a municipality. Punitive damages against municipalities would
not have their intended deterrent effect because “it is far from clear
that municipal officials, including those at the policymaking level,
would be deterred from wrongdoing by the knowledge that large
punitive awards could be assessed based on the wealth of the municipality.”63 Punitive damages against an individual officer, “based on his
personal financial resources,” are better suited to deter the “offending
official,” the Court reasoned.64
Moreover, according to the Court, requiring taxpayers to satisfy
punitive damages awards would be unjust. The awards would be
“likely accompanied by an increase in taxes or a reduction of public
services for the citizens footing the bill. Neither reason nor justice suggests that such retribution should be visited upon the shoulders of
blameless or unknowing taxpayers.”65
***
Although the Supreme Court cases setting out the standards for
qualified immunity, municipal liability, and punitive damages awards
rely on the assumption that officers are financially responsible for settlements and judgments entered against them, a few Justices—in a few
concurrences and dissents—have observed that the world may work
differently than the Court’s precedential decisions assume. In Monell,
which recognized a claim against municipalities under § 1983 for constitutional violations, Justice Powell, concurring, responded to the concern that the Court’s decision exposed cities to retroactive liability by
noting that “it reasonably may be assumed that most municipalities
already indemnify officials sued for conduct within the scope of their
authority, a policy that furthers the important interest of attracting
Entities, 38 RUTGERS L.J. 191, 245–46 (2006) (“The federal government and at least thirtyfive states, as well as the District of Columbia, have enacted statutes that completely bar or
significantly limit the possibility of recovering punitive damages against public entities.”);
Jack M. Sabatino, Privatization and Punitives: Should Government Contractors Share the
Sovereign’s Immunities from Exemplary Damages?, 58 OHIO ST. L.J. 175, 217 (1997) (“At
least thirty-seven states and the District of Columbia have statutes fully or partially
immunizing public entities from punitive damages.”).
62 See City of Newport, 453 U.S. at 263 (“[M]unicipal immunity from punitive damages
was well established at common law by 1871 . . . .”).
63 Id. at 268.
64 Id. at 269.
65 Id. at 267.

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and retaining competent officers, board members, and employees.”66
In Briscoe v. LaHue, Justice Marshall dissented from the majority
decision—which granted absolute immunity to a police officer who
had given perjured testimony during the plaintiff’s criminal trial—
arguing that there was no public policy justification for granting police
officers absolute immunity because “police officials are usually insulated from any economic hardship associated with lawsuits based on
conduct within the scope of their authority.”67 And Justice Souter,
concurring in a decision regarding a § 1983 action for malicious prosecution, noted in passing that “mounting damages against the defendant-officials for unlawful confinement (damages almost certainly to
be paid by state indemnification) would, practically, compel the State
to release the prisoner.”68 But the Court’s majority holdings in cases
interpreting § 1983 uniformly assume that officers are financially
responsible for satisfying settlements and judgments in police misconduct cases.
B. Scholarship
Despite the central role it plays in Supreme Court doctrine, there
has been limited effort to empirically examine police indemnification.
Theodore Eisenberg and Stewart Schwab studied court records of civil
rights cases filed in the Central District of California in 1980 and 1981
and “found no case in which court records showed that an individual
official had borne the cost of an adverse constitutional tort judgment.”69 The Yale Law Journal studied 149 lawsuits alleging police
misconduct filed between 1970 and 1977 in Connecticut federal courts
and found that officers were indemnified in all but two cases: In one
case, an officer was required to pay $25, and the other case, concerning an officer’s off-duty conduct, was still pending at the conclusion of the study period.70 In 1998, John Jeffries, who had taught
police officers at the FBI Academy for nearly twenty years at that
time, reported “routinely” asking his classes of police officers if they
“know personally of any cases where an officer sued under § 1983 was
not defended and indemnified by his or her agency,” that the answer
was always “no,” and that “[i]f there were any real risk that police
officers would be left to defend § 1983 actions on their own, this population would know it.”71 I am aware of no studies of police indemnifi66
67
68
69
70
71

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 713 n.9 (1978) (Powell, J., concurring).
460 U.S. 325, 366 (1983) (Marshall, J., dissenting).
Heck v. Humphrey, 512 U.S. 477, 498 (1994) (Souter, J., concurring).
Eisenberg & Schwab, supra note 11, at 686.
Davis, Small & Wohlberg, supra note 11, at 810–12.
Jeffries, supra note 12, at 50 n.16.

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cation beyond these two decades-old studies and Professor Jeffries’s
informal polls of FBI academy students.
Perhaps unsurprisingly, given the scant available evidence,
scholars have reached different conclusions about the prevalence of
police indemnification. Many—often relying on the Eisenberg and
Schwab study and the Yale Law Journal study, as well as Professor
Jeffries’s information from FBI academy students—assert that government indemnification is widespread.72 Professors Oren Bar-Gill
and Barry Friedman summed up the state of affairs nicely when they
observed that evidence of indemnification practices is “remarkably
difficult to come by, but those involved with the issue seem confident
that police commonly are indemnified for constitutional torts that
occur while on the job.”73
Others contend that indemnification is, as Peter Schuck has
written, “neither certain nor universal.”74 Scholars skeptical of the
72 See, e.g., Barbara E. Armacost, Organizational Culture and Police Misconduct, 72
GEO. WASH. L. REV. 453, 473 (2004) (“Individual officials, however, almost never reap the
financial consequences of § 1983 suits that are brought against them because the
government handles their legal defense and indemnifies them for any damages assessed
against them.”); Richard Emery & Ilann Margalit Maazel, Why Civil Rights Lawsuits Do
Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution,
28 FORDHAM URB. L.J. 587, 590 (2000) (“[P]olice officers almost never pay anything out of
their own pockets to settle civil lawsuits. Nor do they pay for judgments rendered after jury
verdicts for plaintiffs.”); Daryl J. Levinson, Making Government Pay: Markets, Politics, and
the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 353 (2000) (describing
indemnification as “near-universal”); Daniel J. Meltzer, State Sovereign Immunity: Five
Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011, 1019 (2000) (writing that
indemnification is “generally thought to be widespread,” though suggesting that it is not
universal); Miller & Wright, supra note 15, at 782 (“Municipalities indemnify officers in
many cases.”); Martin A. Schwartz, Should Juries Be Informed That Municipality Will
Indemnify Officer’s § 1983 Liability for Constitutional Wrongdoing?, 86 IOWA L. REV.
1209, 1217 (2001) (“States and municipalities often indemnify officers found personally
liable for compensatory damages under § 1983.”). I have relied on this assumption as well.
See Schwartz, supra note 18, at 1032 (“Even when plaintiffs win, some believe that
judgments and settlements will not reliably deter because officers are regularly
indemnified.”).
73 Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. REV.
1609, 1630 (2012).
74 SCHUCK, supra note 13, at 85; see also Myriam E. Gilles, In Defense of Making
Government Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 GA. L. REV.
841, 854 (2001) (“No police officer wants to be sued, particularly where there is no
absolute guarantee that his municipal employer will pay for his defense and indemnify him
for damages.”); Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983’s
Asymmetry, 140 U. PA. L. REV. 755, 786 (1992) (“[T]he practice of indemnification,
although widespread, [is] equally uncertain and uneven. Some governments [will] not
indemnify at all, and others only for conduct comporting with varying definitions of scope
of authority.”); William C. Mathes & Robert T. Jones, Toward a “Scope of Official Duty”
Immunity for Police Officers in Damage Actions, 53 GEO. L.J. 889, 912 (1965) (“[I]t
appears that the indemnity practice is so irregular that its function as a ‘conduit to

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certainty and universality of indemnification point to wide variation in
state indemnification laws.75 Professor Schuck, in a comprehensive
review of indemnification statutes as they existed in the early 1980s,
observed:
Most states provide some form of indemnification or other protection against adverse judgments or settlements, but some apparently
provide it only in narrowly circumscribed situations. Indemnification laws differ with respect to local autonomy, coverage, and other
features. . . . Significantly, most laws preclude government liability
for “bad faith” conduct, and some condition indemnification on
good faith cooperation by the official in the defense of the case. . . .
Some states limit the amount of the indemnity, leaving officials to
satisfy excess claims. . . . State laws also vary in the procedures by
which protection is obtained. . . . Virtually every indemnity statute
precludes reimbursement for actions committed in bad faith, variously defined by statutes and variously construed by courts. . . . Federal, state, and local laws, then, restrict indemnification in many
ways.76

Some have also hypothesized that indemnification may be denied
when officers are disciplined, fired, or criminally charged as a result of
their conduct.77
governmental liability’ is fortuitous at best.”) (quoting Louis L. Jaffe, Suits Against
Governments and Officers: Damage Actions, 77 HARV. L. REV. 209, 216–17 (1963)).
75 See, e.g., Richard Frankel, Regulating Privatized Government Through § 1983, 76 U.
CHI. L. REV. 1449, 1455–56 (2009) (observing that officers are not certain to be
indemnified because “indemnification clauses often do not cover bad faith behavior” and
“exclude intentional, reckless, or malicious conduct”); Myriam E. Gilles, Breaking the
Code of Silence: Rediscovering “Custom” in Section 1983 Municipal Liability, 80 B.U. L.
REV. 17, 30–31 (2000) (observing that indemnification provisions are “wrought with
uncertainty and difficulties” and “invariably afford the municipality the unilateral option
of disclaiming coverage in broad categories of cases”); Meltzer, supra note 72, at 1019–20
(arguing that government employees are not always indemnified because “employees or
agencies may (advertently or otherwise) be excluded; indemnification may be permissive
rather than mandatory (though admittedly a routine practice of permissive indemnification
may blunt any distinction); some states impose monetary limits on indemnification; and
many indemnification provisions exclude conduct that is criminal, egregious, willful, or the
like” (citations omitted)).
76 SCHUCK, supra note 13, at 86–87.
77 See Howard Friedman, To Protect and Serve?, 47 TRIAL 14, 16 (Dec. 2011)
(“[Indemnification] is unlikely . . . where the officer was found guilty of criminal conduct
against a plaintiff. Many insurance policies and state statues [sic] prohibit
indemnification . . . for criminal conduct. Similarly, if a department terminates an officer
for his or her actions toward a plaintiff, the department may refuse indemnification.”);
Jeffries, supra note 12, at 50 (hypothesizing that, although state officers are usually
indemnified, those “who become targets of criminal prosecution are unlikely to receive
financial subvention for civil liability”); Barry C. Scheck, Criminal Prosecution and Section
1983, 16 TOURO L. REV. 895, 902–03 (2000) (“You can almost certainly be assured
indemnification will not occur in most of these instances where a police officer is

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When scholars do not directly consider the indemnification question, they—like the Supreme Court—generally assume that officers
are financially responsible for settlements and judgments entered
against them. For example, scholars have argued that supervisory liability is an important claim for plaintiffs to be able to allege because
“[s]upervisors are more likely to have resources to satisfy judgments
than low-level officials who commit wrongdoing.”78 Scholars have also
asserted that vicarious liability for municipalities would better compensate plaintiffs because officers “are unlikely to have the resources
to pay a judgment.”79
The Supreme Court has long assumed that law enforcement
officers personally satisfy settlements and judgments, and has limited
individual defendant and government liability in civil rights damages
actions based in part on this assumption. Scholars disagree about the
prevalence of indemnification: Some believe indemnification is widespread, some contend that indemnification is not a certainty, and
others appear to assume that officers regularly satisfy settlements and
judgments against them. Despite the centrality of police indemnification to civil rights doctrine and scholarship, there has been no effort—
apart from two decades-old studies and informal polls of FBI academy
students—to examine the prevalence or scope of police
indemnification.
II
STUDY
A. Methodology
In order to test judicial and scholarly assumptions about indemnification, my study examined how frequently officers financially contribute to settlements and judgments in police misconduct suits.
Prior studies of police indemnification have gathered information
primarily through review of court documents.80 As a result, their findings are limited to cases that result in judgments after trial or to publicly recorded settlement agreements. I focused, instead, primarily on
records produced by cities, counties, and states. Although this
approach has its own limitations—which I will describe—it does proconvicted. . . . If there is an acquittal, there may be administrative sanctions against the
officer, but indemnification is unlikely.”).
78 Rosalie Berger Levinson, Who Will Supervise the Supervisors? Establishing Liability
for Failure to Train, Supervise, or Discipline Subordinates in a Post-Iqbal/Connick World,
47 HARV. C.R.-C.L. L. REV. 273, 276 (2012).
79 Fisk & Chemerinsky, supra note 56, at 796.
80 See supra notes 11, 69–70 and accompanying text (describing other studies).

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vide information about settlement payouts that would not otherwise
appear in court documents and are, often, kept confidential.81
I first sought information about police indemnification from the
fifty largest municipal police departments and the fifty largest law
enforcement agencies across the country (which include not only
municipal departments but also county and state agencies).82 The two
lists overlap, resulting in a total of seventy departments. I sent public
records requests to each of these seventy departments, requesting
documents that reflect83 (1) the total number of cases resolved
between January 1, 2006 and December 31, 2011 in which one or more
of the defendants was an employee of the agency;84 (2) the total dollar
amount paid to plaintiffs in these cases; (3) the number of instances in
which defendant employees were required to contribute to settlements and judgments, and the amount the defendant employees were
required to pay in these instances; (4) the amount of punitive damages
awarded against officers during the study period; and (5) the number
of instances in which officers were required to satisfy punitive damages awards, and the amount officers were required to pay.
These initial records requests were, in most instances, the first
step in an extended series of exchanges—by letter, e-mail, and
phone—to several individuals at multiple agencies. My requests were
repeatedly lost or disregarded. Interestingly, when I did get responses
from law enforcement agencies, many reported that they did not keep
information about litigation payments or indemnification decisions.
Just twelve of the seventy large law enforcement agencies queried
were able to provide information about payouts and indemnification
81 See Miller & Wright, supra note 15, at 775 (“[M]any civil claims against police are
resolved either before a case is filed, or through secret settlements and judgments sealed
by courts. Police departments, cities and counties are settling strong cases, and perhaps
even less strong cases, but they are requiring (and probably paying for) sealed
agreements.”).
82 For lists of the 50 largest police departments and 50 largest law enforcement
agencies, see Bureau of Justice Statistics, Census of State and Local Law Enforcement
Agencies (CSLLEA), NAT’L ARCHIVE CRIMINAL JUSTICE DATA (2008), http://www.icpsr.u
mich.edu/icpsrweb/NACJD/studies/27681 (download “Delimited” and refer to the variable
Q6_TOT for total number of sworn law enforcement officers) [hereinafter BJS LAW
ENFORCEMENT CENSUS DATA]; BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS,
CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 2008, at 14, 17 (2011)
[hereinafter BJS LAW ENFORCEMENT CENSUS REPORT], available at http://bjs.gov/content/
pub/pdf/csllea08.pdf.
83 Although all requests sought this information, the precise language of the requests
was modified in some instances to respond to jurisdictions’ questions or to comply with
jurisdictions’ public records provisions.
84 I eliminated from jurisdictions’ responses those cases that were still pending as of
December 31, 2011. If a jury had awarded damages but the case was on appeal—or, in one
case, the indemnification decision was still being litigated—I excluded it from the data set.

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decisions based on their own records.85 Many forwarded the public
records request (or required me to send a new request) to another
entity, usually the city or county attorney, clerk, or council. I then
endeavored to get responsive information from these entities.
After over a year of letters, telephone calls, and e-mails, fortyfour of the seventy jurisdictions queried provided me with some information both about settlements and judgments paid between 2006 and
2011, and about their indemnification decisions during the study
period.86 I supplemented these responses with telephone interviews
and e-mail exchanges with risk managers, city attorneys, city council
staff, city clerk employees, plaintiffs’ attorneys, and others, seeking
additional information about indemnification practices in these fortyfour jurisdictions. I reviewed minutes of city council meetings in which
settlements and judgments were approved to supplement incomplete
settlement and judgment information. I searched for additional case
information on Westlaw, Bloomberg Law, and state-specific court
websites.
Then, to ensure that my findings were not reflective only of practices in the largest departments,87 I sent a second round of public
records requests to seventy randomly selected small and mid-sized
departments, ranging from 1 to 747 sworn officers. I received
responses from thirty-seven of those seventy jurisdictions.88
85 Those twelve departments were: California Highway Patrol, New York State Police,
Texas Department of Public Safety, Baltimore Police, Las Vegas Metro Police,
Massachusetts State Police, Illinois State Police, North Carolina State Highway Patrol,
Michigan State Police, Broward County Sheriff, Florida Highway Patrol, and Kansas City
Police. Four additional departments—the Charlotte-Mecklenberg Police Department,
Chicago Police Department, Pennsylvania State Police Department, and Miami-Dade
Police Department—had information in their own records about the amount paid in
lawsuits, and one—the Boston Police Department—had information about
indemnification decisions. Note that eight of the twelve agencies with the most complete
information were state law enforcement agencies, and just three of the eleven large state
law enforcement agencies in my study did not possess information about litigation costs
and indemnification decisions. Note also that the Riverside Sheriff provided me with
responsive information, but made clear that the Sheriff was not the custodian of the
records; the Sheriff had received the information from the County’s Risk Management
Division. Accordingly, I do not include Riverside in this list.
86 Appendix A has a list of responsive jurisdictions; Appendix G catalogues responses
from the jurisdictions that did not have information about indemnification decisions and/or
settlements and judgments during the study period; and Appendices I and J set out the
data sources for responsive and nonresponsive larger jurisdictions, respectively.
87 The vast majority of law enforcement agencies across the country are small. Just
eighty-three of the 17,985 law enforcement agencies have 1000 or more officers. BJS LAW
ENFORCEMENT CENSUS REPORT, supra note 82, at 2. Forty-nine percent of all law
enforcement agencies employ fewer than ten full-time sworn officers. Id.
88 Appendix E has a list of responsive small and mid-sized jurisdictions, and Appendix
K sets out data sources for both responsive and nonresponsive small and mid-sized
jurisdictions.

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The eighty-one jurisdictions in my study are widely representative
in several respects. Responding departments vary significantly in size:
The largest department in the study, the New York City Police
Department, employs over 36,000 officers; the smallest department in
the study, the Waterloo Police Department, in Nebraska, employs just
one.89 The eighty-one departments in my study are located in thirtytwo states and every region of the country.90 The responsive departments are located in cities, counties, and states that span the political
spectrum.91 The departments in my study are involved in a wide range
of law enforcement activities: Fifty of the agencies in the study are
municipal police departments; sixteen are sheriff’s departments, fifteen of which staff county jails in addition to the other law enforcement services they provide;92 eleven are state police departments, four
of which are primarily responsible for patrolling state highways; and
four are county police departments.
These eighty-one jurisdictions also have a wide range of indemnification statutes and policies. Some mandate indemnification for suits
arising out of the course and scope of employment,93 some allow
89 See BJS LAW ENFORCEMENT CENSUS DATA, supra note 82 (providing the sizes of
law enforcement agencies).
90 Responsive jurisdictions are located in the West (including Alaska, California,
Colorado, Hawaii, Idaho, Montana, Nevada, Utah, and Washington); the Midwest
(including Illinois, Indiana, Kansas, Michigan, Missouri, Nebraska, Ohio, and Wisconsin);
the Southwest (including Arizona, New Mexico, Oklahoma, and Texas); the Southeast
(including Alabama, Florida, Georgia, Kentucky, and North Carolina); and the Northeast
(including New Hampshire, New Jersey, New York, Maryland, Massachusetts, and
Pennsylvania).
91 There are, for example, reliably “blue” states (California, Illinois, Maryland, New
York, and Washington); reliably “red” states (Georgia, Texas, and Oklahoma); and
“purple” states (Florida and North Carolina). The study also includes some of the most
liberal and conservative cities in the country. See BAY AREA CENTER FOR VOTING
RESEARCH, THE MOST CONSERVATIVE AND LIBERAL CITIES IN THE UNITED STATES 8, 10
(2005) (reporting that the twenty-five most liberal cities in the United States include San
Francisco, Seattle, New York, and Boston, and that the twenty-five most conservative cities
in the United States include Oklahoma City and City of Orange, California, which is
located in a responsive jurisdiction—Orange County).
92 One of the sixteen sheriff’s departments—Oldham County, Kentucky—appears not
to provide correctional services. See OCSO Responsibilities, OLDHAM COUNTY SHERIFF’S
OFFICE, http://www.oldhamsheriff.com/?page_id=26 (last visited Apr. 29, 2014) (describing
the sheriff’s office’s responsibilities).
93 See, e.g., OHIO REV. CODE ANN. § 2744.07 (West 2006) (“[A] political subdivision
shall indemnify . . . an employee in the amount of any judgment, other than . . . for punitive
or exemplary damages, . . . for damages . . . caused by an act or omission in connection with
a governmental or proprietary function, if . . . the employee was acting in good faith and
within the scope of employment or official responsibilities.”); PHX., ARIZ., CITY CODE
§ 42-16 (2014), available at http://www.codepublishing.com/az/phoenix/ (search “42-16”
and click on the “42-16 Representation and indemnification of the City, City employees,
covered corporations, covered City entities and other persons, corporations or entities”
hyperlink) (“[The City] shall provide legal defense and indemnification for any covered

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indemnification under limited circumstances,94 and at least one
reports that it prohibits indemnification altogether.95 Some jurisdictions rely on state law when making their indemnification decisions,
some follow local or department-specific policies, and some have no
written policy and make indemnification decisions case by case.96
Some jurisdictions prohibit indemnification of punitive damages
awards and others allow indemnification of punitive damages awards
in limited circumstances.97 There are also differences across jurisdictions in my study regarding indemnification procedures: Some jurisdictions make indemnification decisions at the outset of litigation and
individual subject to a liability claim . . . where a reasonable and good faith argument can
be made that the civil liability of such individual arises from acts or omissions within the
course and scope of the individual’s employment with the City.”); DALL., TEX., CITY
ORDINANCE § 31A-5 (2013), available at http://www.dallascityhall.com/html/codes.html
(search for “31A”; then follow “Chapter 31A Officers and Employees” hyperlink; then
follow “Sec. 31A-5. Coverage” hyperlink) (providing a liability plan for city officers and
employees under which “[t]he city shall indemnify and defend [an individual] . . . against a
loss arising out of any claim, suit, or judgment resulting from an act or omission of the plan
member during the discharge of his duties and within the scope of his office, employment,
or assigned volunteer work with the city”).
94 See, e.g., MO. REV. STAT. § 105.711 (2000) (providing funds to pay any claim or
judgment against “[a]ny officer or employee of the state of Missouri or any agency of the
state . . . upon conduct of such officer or employee arising out of and performed in
connection with his or her official duties on behalf of the state”); Austin City Council Res.
870409-02 (Austin 1987) (authorizing indemnification of city officials and employees where
the individual “shall become legally obligated to pay by reason of the errors, omissions,
negligent acts or violations of legal rights under color of law . . . [only where] [t]he damages
assessed [are] based on an act . . . in the course and scope of [the individual’s] position or
employment for the City,” but reserving “the right to refuse such indemnification
depending on the factual circumstances from which damages have arisen”).
95 Telephone Interview with Laura Gordon, Deputy City Attorney, City of El Paso
(June 19, 2012) (describing city practice of providing all officers with a lawyer but reporting
that “in no case do we indemnify”).
96 See, e.g., E-mail from Kristen Denius, Senior Assistant City Attorney, Atlanta City
Attorney’s Office, to Brian Cardile, Student, UCLA School of Law (Feb. 1, 2013, 13:20
PST) (on file with the New York University Law Review) (reporting that the city does not
have a written indemnification policy, but “make[s] a case-by-case determination about
whether to represent individual [defendants] who are named in lawsuits”); Telephone
Interview with Laura Gordon, supra note 95 (reporting that El Paso has no formal
indemnification policy, but does not indemnify its officers as a matter of practice); E-mail
from Bob Sanguinetti, Div. of Law Records Custodian, N.J. State Police, to author (Mar. 6,
2013, 13:08 PST) (on file with the New York University Law Review) (“The Division of
Law has no written indemnification policy and relies on N.J.S.A. Title 59.”); Letter from
Jamar B. Herry, Assoc. Cnty. Attorney, Prince George’s Cnty. Gov’t Office of Law, to
author (Sept. 12, 2012) (on file with the New York University Law Review) (providing a
section of the “Prince George’s County’s Risk Management Committee Policy and
Procedures” in response to a request for the county’s indemnification policy).
97 Compare infra note 149 (describing California’s statute, which allows
indemnification of punitive damages), with infra notes 153–56 (describing statutes and
policies in effect in Prince George’s County, Oklahoma City, Las Vegas, and New York
City that prohibit indemnification of punitive damages expressly or by implication).

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others wait until the conclusion of a case to decide whether to indemnify.98 Finally, there are differences across jurisdictions in who makes
indemnification decisions: In some jurisdictions, the city or county
attorney decides whether an officer should be indemnified; in other
jurisdictions, the decision is left to the board of police commissioners
or city council.99
The broad representativeness of departments in my study should
lessen concerns that the responding jurisdictions are systematically
different from jurisdictions that did not respond to the public records
requests and jurisdictions that were not queried. But even if there
were some manner of selection bias, and my findings were not reliably
reflective of jurisdictions outside the study, the study offers valuable,
previously unknown information about indemnification practices
across a significant portion of law enforcement agencies and officers.
Twelve of the nation’s twenty largest law enforcement agencies are
included in my study, and the eighty-one departments in my study
employ almost 20% of the country’s approximately 765,000 sworn law
enforcement personnel.100
I took several steps to create consistency in the data about lawsuit
payments provided by the forty-four largest jurisdictions in my
study.101 Jurisdictions provided responsive data about the amount
paid in lawsuits in different formats: Some provided detailed spread98 See, e.g., DALL., TEX., CITY ORDINANCE § 31A-5 (2013), available at http://www.dal
lascityhall.com/html/codes.html (search for “31A,” then follow “Chapter 31A Officers and
Employees” hyperlink, then follow “Sec. 31A-5. Coverage” hyperlink) (conditioning
indemnification on defendant’s cooperation with the lawsuit’s defense); Telephone
Interview with Lisa Freitag, Rules Coordinator, Legal Office, Ill. State Police (July 12,
2012) (on file with the New York University Law Review) (reporting that the Illinois
Attorney General reviews the allegations in the complaint and, at that time, decides
whether to provide representation and indemnification); Telephone Interview with Mia
Obciana, Deputy Corp. Counsel, City of Honolulu (Dec. 4, 2012) (on file with the New
York University Law Review) (reporting that if the Police Commission decides the officer
was acting within the course and scope of his employment after receiving the complaint,
the officer will receive representation and indemnification); infra note 221 and
accompanying text (describing New York City’s practice of waiting until the conclusion of
a case to decide whether to indemnify).
99 See, e.g., PHX., ARIZ., CITY CODE § 42-16 (2014), available at http://www.codepublish
ing.com/az/phoenix/ (authorizing the city attorney to make indemnification decisions);
supra note 98 (noting that the Illinois Attorney General makes indemnification decisions
for the Illinois State Police and the Honolulu Police Commission makes indemnification
decisions for the Honolulu Police Department).
100 See BJS LAW ENFORCEMENT CENSUS DATA, supra note 82 (providing the number of
sworn law enforcement personnel nationwide and by agency); infra Appendix A (listing
responsive large jurisdictions); infra Appendix E (listing responsive small and mid-sized
jurisdictions).
101 I did not take these same steps for the small and mid-sized departments I queried
because my primary goal regarding these smaller departments was to confirm that their
indemnification decisions were similar to those in larger departments, and because several

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sheets that set out the parties, nature of the claims, and disposition;
some provided lists of what they categorized as civil rights cases; some
provided lists that set out litigation payments but did not identify the
nature of the underlying claims; some provided information about
payments in certain categories of constitutional claims but not others;
and some did not track lawsuit payouts but directed me to city and
county council websites that contained information about settlements
that these entities had approved.102
Because my research suggests that officers are virtually always
indemnified for both civil rights and non–civil rights cases, there is no
reason to believe that inconsistencies in the types of cases reported by
jurisdictions would significantly affect my conclusions about the
number of cases in which officers were not indemnified.103 These
inconsistencies would, however, skew findings about the amount paid
by each jurisdiction: A jurisdiction that provided information only
about civil rights cases would appear to have comparatively fewer
payouts than a jurisdiction that provided information about all cases
involving its officers. Accordingly, I endeavored to create uniformity
in the types of cases counted for each jurisdiction.
Because this study aims to test assumptions about indemnification underlying civil rights doctrine, I eliminated, when possible, cases
that clearly did not involve § 1983 claims alleging police misconduct,
including cases involving automobile accidents, employment discrimination or other internal employment actions, and off-duty conduct
unrelated to law enforcement activities.104 But ten of the forty-four
of the smaller departments did not provide information about payouts in their
jurisdictions.
102 Appendix I describes the types of information provided by each of the forty-four
large responsive jurisdictions.
103 See infra notes 129–30 and accompanying text (describing findings of virtually
universal indemnification for non–civil rights claims); Appendix B (providing
indemnification statistics for the twenty-eight larger responsive jurisdictions that provided
information about non–civil rights claims).
104 I removed two cases that involved off-duty conduct unrelated to law enforcement
activities. See Owens v. Feigin, 394 N.J. Super. Ct. App. Div. 85, 87 (2007) (reciting
allegations in a Notice of Tort Claim alleging a teenager died at the home of his friend,
whose father was a state trooper); Philip Messing, Bar Bat Shooter Was Off-Duty Cop,
N.Y. POST, Oct. 10, 2002, at 2 (describing a dispute between Derick Bonner and Earl
Rozier, an off-duty New York City police officer, at a nightclub, which presumably
underlies the case of Bonner v. Rozier). I also removed a case in which an officer was sued
for conduct while assigned to another law enforcement agency. See Telephone Interview
with Lisa Freitag, supra note 98. I kept five cases in the data set that involve off-duty
conduct, however, because off-duty conduct can still be the basis for a § 1983 claim if the
officer “purport[s] to exercise the authority” of a law enforcement officer by identifying
him or herself as such or displaying a badge. Griffin v. Maryland, 378 U.S. 130, 135 (1964).
For example, Ferreri v. Cleveland involved a shooting by an off-duty Cleveland police
officer who was serving as a security guard in an apartment complex at the time. Although

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largest jurisdictions provided me with information about payouts in all
cases involving police officers, and so I could not isolate payments in
civil rights claims.105 In order to estimate the dollars spent on civil
rights cases in these ten jurisdictions I relied on the median percentage (76.3%) of total dollars spent on civil rights cases in the
nineteen large jurisdictions that provided detailed responses about
payouts in both civil rights and non–civil rights claims.106 Similarly, I
estimated the number of civil rights cases resolved in plaintiffs’ favor
in the eleven large jurisdictions107 that did not provide me with this
information based on the median percentage (52.7%) of total cases
with payments to plaintiffs that involved civil rights claims in the eighteen jurisdictions that provided detailed responses.108
the officer was off-duty, he identified himself as a police officer before shooting the victim.
Defandant’s Memorandum in Support of Summary Judgment 2–3, Ferreri v. City of
Cleveland, No. 09-CV-00621, at *3 (D. Ohio Oct. 23, 2009). In another case, an off-duty
officer assaulted the plaintiff and then provided false information that led to plaintiff’s
arrest. McNamara v. City of New York, No. 06 Civ. 5585(LTS)(FM), 2009 WL 735135, at
*1–2 (S.D.N.Y. Mar. 20, 2009). The court dismissed all but one of plaintiff’s constitutional
claims against the officer on the ground that he was not acting under color of state law, but
did not dismiss a false arrest claim based on the off-duty officer’s statements to the police
that led to the plaintiff’s arrest. Id. at *8. The defendant subsequently paid $16,500 to settle
the case. Stipulation and Order of Settlement and Dismissal, McNamara v. City of New
York, No. 06-CV-05585 (S.D.N.Y. Sept. 1, 2009) (setting out the terms of the settlement).
In Massey v. City of New York, an off-duty detective assaulted the plaintiff during a
dispute regarding the detective’s girlfriend, and then called the police and had the plaintiff
arrested. Complaint at 3–4, Massey v. City of New York, No. 05-CV-8718, 2005 WL
3655618 (S.D.N.Y. Oct. 14, 2005). In two other cases—Baird and Oliveras—off-duty
officers allegedly engaged in sexual misconduct with people accessed through their
employment. See Lawrence Goodman & John Marzulli, Cop Eyed in Kinky Calls, N.Y.
DAILY NEWS, Oct. 1, 1997, at 51, available at http://www.nydailynews.com/archives/news/
eyed-kinky-calls-article-1.782234 (reporting that a police officer—charged with
endangering the welfare of a child—contacted the minor through information filed in a
complaint at the officer’s precinct); If You Dare Complain About Police Abuse . . . : The
Record of New York’s Civilian Complaint Review Board, REVOLUTION (Nov. 15, 1998),
http://www.revcom.us/a/v20/980-89/982/ccrb.htm (discussing the facts of Baird); Complaint
at 3, Oliveras v. City of New York, No. 105193/08 (S.D.N.Y. Oct. 14, 2005); Telephone
Interview by Brian Cardile with Plaintiff’s Attorney in Oliveras (Feb. 8, 2013) (describing
the facts of the case). In an abundance of caution, I have kept all five cases in the data set.
See Appendix H for additional detail about these cases.
105 These ten jurisdictions are New York State Police, New Jersey State Police, Las
Vegas Metro Police, Riverside County Sheriff, Illinois State Police, San Antonio Police,
San Bernardino Sheriff, Cleveland Police, Florida Highway Patrol, and Kansas City Police.
106 See Appendix C, which provides relevant data from these nineteen jurisdictions.
107 These eleven jurisdictions include the ten jurisdictions listed supra note 105 and the
California Highway Patrol.
108 See Appendix D, which provides relevant data from these eighteen jurisdictions. In
some instances, I had information only about the number of cases resolved—by settlement,
judgment, or dismissal—in the jurisdiction. In these instances, I made similar calculations
based on the median percentage (20.6%) of total cases closed—by settlement, judgment,
or dismissal—between 2006 and 2011 that involved civil rights claims with payments to
plaintiffs in the eleven jurisdictions that provided sufficiently detailed information. See id.

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Two large departments—Denver and Atlanta—did not have
information about the amount paid before 2008. Accordingly, I estimated the total amount paid by these jurisdictions between 2006 and
2011 by prorating their average monthly payouts based on the information I was provided.
One of the forty-four large jurisdictions—Cook County—
reported that it represented and indemnified all officers found by the
jurisdiction to have acted within the course and scope of their employment, but did not represent or indemnify officers if they were found to
have acted outside the course and scope. The County reported that it
had no details about such cases. Because Illinois broadly defines conduct within the course and scope of employment, it is unlikely—
though certainly possible—that excluded cases include conduct
actionable under § 1983.109 One would imagine that officers would
contest denials of representation or indemnification in close cases.110
Yet Westlaw searches reveal no challenges to indemnification denials
in Cook County during the study period.
Another limitation of the data is that—unlike studies that rely on
court records—I am unable to verify much of the information provided by these jurisdictions. Although I have no basis to believe that
government officials were responding to my requests in bad faith, I do
not know whether jurisdictions keep—or have provided me with—
accurate information about settlements, judgments, and indemnification decisions.111 In several jurisdictions, I have identified through
other sources information that should have been included in jurisdictions’ responses but was not. In these instances, I have added that
information to the data set.112 Similarly, I removed information pro109 Illinois courts have held that police conduct is within the course and scope of
employment so long as the “relevant acts are shown to be a natural part of or incident to
the service of employment,” and the defendants were “not acting [solely] as private
individuals.” Coleman v. Smith, 814 F.2d 1142, 1149–50 (7th Cir. 1987). Acts found to have
been within the course and scope of police officers’ employment in Illinois include: falsely
arresting a plaintiff to “hamper an investigation into police corruption”; a “severe postarrest beating”; “framing [a] plaintiff for three burglaries”; and “wrongful shooting of the
plaintiff.” Wilson v. Chicago, 900 F. Supp. 1015, 1029–30 (N.D. Ill. 1995).
110 See, e.g., infra notes 212–20 and accompanying text (describing legal challenges to
Los Angeles County’s decisions to deny indemnification to deputies in two cases).
111 See Mark Iris, Illegal Searches in Chicago: The Outcomes of 42 U.S.C. § 1983
Litigation, 32 ST. LOUIS U. PUB. L. REV. 123, 125–26 (2012) (reporting that the City of
Chicago’s list of lawsuits filed against its officers in federal court in 2009, produced in
response to a public records request, “did not include approximately forty cases” found on
Westlaw, Bloomberg, and PACER—approximately 8.7% of the total cases filed in federal
court against Chicago police officers in 2009).
112 For example, Prince George’s County, Las Vegas, and San Bernardino County did
not disclose punitive damages judgments in cases found on Westlaw—presumably because

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vided by jurisdictions from the data set when it fell outside the scope
of my study.113
Moreover, at least nineteen of the forty-four large jurisdictions in
the study did not keep formal records of indemnification decisions but
responded to my request for information based on the recollections of
personnel working in the government attorneys’ or risk management
offices.114 Because officers were so infrequently required to contribute
to settlements and judgments, respondents likely remembered these
exceptional cases. They sometimes had difficulty, however, remembering what year these cases were resolved. When people reported a
denial of indemnification that may have occurred between 2006 and
2011, I included that information in my calculations. When departments did not know for certain whether officers were ever denied
indemnification but I came up with convincing circumstantial or direct
evidence on this point through interviews or docket research, I
included that information in my calculations.115
There may be other instances in which the jurisdictions in my
study provided inaccurate information. There may be additional
the cases settled postjudgment and so there was, technically, no punitive damages
judgment imposed. See infra Part II.D.2 for a discussion of the resolutions of these cases.
113 See, e.g., supra note 104 (describing the removal of cases in which officers were sued
for off-duty conduct unrelated to their law enforcement responsibilities). Additionally, the
list of police misconduct cases produced by New York City includes at least sixteen cases
that were improperly included in the data set. See infra Appendix I (describing the sources
for New York City’s data). I have removed these cases from my calculations, but there may
well be additional non–civil rights cases in the figures provided by New York City and
other jurisdictions.
114 The nineteen large departments that reported they did not keep track of
indemnification information but responded based on institutional memory are: Riverside;
Illinois State Police; San Antonio; Milwaukee; San Francisco; Columbus; CharlotteMecklenburg; Broward County; Albuquerque; Miami; Jacksonville; Cleveland; Florida
Highway Patrol; Michigan State Police; Atlanta; Prince George’s County; Denver; El Paso;
and Tampa. Twenty-four departments responded to my request for indemnification
information without specifying whether their responses were based on records or
institutional memory. I learned about New York City’s indemnification decisions in federal
court cases by reviewing individual dockets and settlement agreements, and by consulting
with plaintiffs’ attorneys. See Appendix I (describing data collection for New York City on
the indemnification issue). For the twenty-six large jurisdictions that did not keep track of
indemnification decisions and would not respond based on institutional memory or review
of relevant records, see Appendix G (listing nonresponsive large jurisdictions) and
Appendix J (describing my correspondence with nonresponsive jurisdictions).
115 One jurisdiction reported that one officer was not provided representation by the
city during the study period. The City of Austin reported paying $2500 to resolve claims
against it in the case, but “do[es] not know what happened to the claims against the
individual officer.” E-mail from Meghan Riley, Div. Chief, Litig., City of Austin, Tex., to
author (Mar. 14, 2014, 09:54 PDT) (on file with the New York University Law Review).
Calls to plaintiffs’ counsel and the defendant officer’s counsel went unreturned. Because I
have no evidence indicating that this officer contributed to a settlement in this case, I have
not included it in my calculations.

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instances in which officers were required to contribute to settlements
or judgments against them. Yet, given the starkness of my findings, my
study results would need to be inaccurate by an order of magnitude or
more to undermine in any significant regard the conclusion that police
indemnification is a near certainty in police misconduct lawsuits.
B. The Prevalence of Indemnification
In stark contrast to assumptions underlying civil rights doctrine,
law enforcement officers employed by the eighty-one jurisdictions in
my study almost never contributed to settlements and judgments in
police misconduct lawsuits during the study period. Between 2006 and
2011, officers were required to contribute to settlements or judgments
in three to five of the forty-four large jurisdictions in my study.116
Thirty-five officers employed by the New York City Police
Department were required to contribute between $250 and $16,500—
with a median payment of $2125—in thirty-four cases. Two officers
employed by the Cleveland Police Department were required to contribute to settlements in two cases: One officer contributed $12,000
and the other contributed $25,000. One officer from the Los Angeles
Police Department was not indemnified for a $300 punitive damages
award. An official from the Jacksonville City Attorney’s Office
recalled one use-of-force case in which a Jacksonville Sheriff’s deputy
may have been required to contribute between $5000 and $20,000
during the relevant time period. And an official from the legal office
of the Illinois State Police reported that there may have been one case
resolved during the study period in which an officer was required to
contribute, but had no information about the facts of the case or the
amount the officer was required to pay.
Officers contributed to a miniscule proportion of lawsuits
resolved in plaintiffs’ favor during this six-year period. Approximately
9225 civil rights cases were resolved with payments to plaintiffs
between 2006 and 2011 in the forty-four largest jurisdictions in my
study.117 Officers financially contributed to settlements or judgments
in approximately .41% of those cases.118 Officers were also responsible for a miniscule percentage of the settlements and judgments as
116

See infra Part II.F and Appendix H for further description of these cases.
See Appendix A, which describes the number of civil rights cases resulting in a
payment to the plaintiff during the study period. As described in Part II.A and detailed in
Appendix I, some of these numbers are estimations based on incomplete data provided by
the jurisdictions.
118 If officers contributed to thirty-seven of these cases, they would have contributed to
.401% of the cases. If officers contributed to thirty-nine of these cases, they would have
contributed to .423% of these cases. The average is .412%.
117

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measured in dollars. The forty-four jurisdictions paid an estimated
$735,270,772 in settlements and judgments involving civil rights claims
on behalf of their law enforcement officers between 2006 and 2011.
Officers were financially responsible for $151,300 to $171,300 during
this period;119 approximately .02% of the total dollars paid.
Even in the jurisdictions that required officers to contribute to
settlements and judgments, officers’ financial contributions were minimal. New York City Police Department officers were required to contribute to just .49% of the civil rights cases in which plaintiffs received
payment.120 The $114,000 paid by NYPD officers in these cases
amounts to 3.69% of the total paid to plaintiffs in these thirty-four
cases,121 and .03% of the total dollars paid to plaintiffs in New York
City Police Department civil rights actions during this six-year
period.122 The $300 in punitive damages not indemnified by the City
of Los Angeles in one case amounts to .19% of the total awarded to
the plaintiff in that case and .0008% of total payments to plaintiffs in
Los Angeles during the study period.123 Cleveland is, in comparison to
New York and Los Angeles, an outlier: Cleveland required officers to
contribute to two (5.7%) of the estimated thirty-five civil rights cases
resolved in plaintiffs’ favor, and the officers were required to contribute 40.2% of the total settlement amounts in these two cases.124
But, even in Cleveland, officers paid just approximately 1% of total
dollars awarded to plaintiffs in civil rights cases during the study
period.125
119 The $20,000 difference depends on whether the Jacksonville Sheriff’s deputy was
denied indemnification during the study period and paid a total of $20,000—the maximum
in the range remembered by the Chief Deputy Counsel for the City of Jacksonville.
Depending on whether or not a deputy was required to pay this additional $20,000, law
enforcement officers personally satisfied between .020% and .023% of the money paid to
plaintiffs during this period. The Illinois State Police case, if within the study period, would
potentially raise the amount further but would have minimal impact in percentage terms
on these findings.
120 See Appendix A (providing summary statistics for larger jurisdictions).
121 See Appendix H (reporting $114,000 paid by New York City Police Department
officers, out of a total of $3,086,505 paid to plaintiffs in those cases).
122 Compare Appendix A (reporting $348,274,595.81 paid by the New York City Police
Department for civil rights settlements and judgments), with Appendix H (reporting
$114,000 paid by officers).
123 See Appendix A (reporting payment of $38,734,282.27 to plaintiffs in civil rights
judgments and settlements in Los Angeles); Appendix H (reporting $160,300 awarded to
plaintiff in Taylor-Ewing v. City of Los Angeles, with $300 not indemnified by Los
Angeles).
124 See Appendix H (reporting $37,000 paid by Cleveland officers and $92,000 paid to
plaintiffs in two cases).
125 See Appendix A (reporting $3,474,253.87 in civil rights payments to all Cleveland
plaintiffs); Appendix H (reporting $37,000 paid by Cleveland officers).

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The likelihood that an officer would have to contribute to a settlement or judgment over the course of his career is also exceedingly
remote. Extrapolating from the study data, an officer employed by the
NYPD has a 1 in 308 chance of contributing to a settlement during a
twenty-year career.126 In Cleveland, an officer has 1 in 242 chance of
being required to contribute to a settlement during a twenty-year
career.127 And in the other jurisdictions in my study—Cook County,
San Francisco, Baltimore, Phoenix, Miami, Atlanta, and Boston
among them—officers are more likely to be struck by lightning than
they are to contribute to a settlement or judgment in a police misconduct suit.128
Although this study focuses on the indemnification of officers in
civil rights cases, my data indicates that officers are as likely—if not
more likely—to be indemnified for settlements and judgments in cases
that do not allege civil rights violations. Twenty-seven of the forty-four
largest jurisdictions that responded to my public records requests did
not limit their responses to payouts and indemnification decisions in
civil rights cases, and so included cases involving employment discrimination, motor vehicle accidents, and the like. In these twenty-seven
jurisdictions, no officer was required to contribute to a non–civil rights
case.129 Officers were responsible for contributing to settlements and
126 If thirty-five NYPD officers financially contributed to settlements and judgments
during the six-year period of this study, then approximately 117 officers out of over 36,000
would contribute to settlements and judgments over a period of twenty years, which is the
length of time officers typically serve before retirement or promotion. See Joseph Berger,
Still on Patrol After Two Decades, Valued but Rare, N.Y. TIMES, Dec. 14, 2011, at A30
(noting that in New York City, “[a]ccording to the Patrolmen’s Benevolent Association,
only 863 of the city’s 34,805 officers still hold the rank of police officer after 20 years,” with
the vast majority of officers retiring or moving up the ranks).
127 If two Cleveland Police Department officers financially contributed to settlements
and judgments during the six-year period of this study, then approximately 6.67 officers out
of over 1600 would contribute to settlements and judgments over a twenty-year period.
128 None of the approximately 93,313 officers in the other thirty-nine larger agencies
(excluding the New York City Police Department, Los Angeles Police Department,
Cleveland Police Department, Illinois State Police Department, and Jacksonville Sheriff’s
Office) were required to contribute to a settlement or judgment during the study period. In
comparison, “[f]or an average person in the U.S., the lifetime risk is roughly one in 3000 of
being struck and one in 35,000 of being killed by lightning.” Amber E. Ritenouret al.,
Lightning Injury: A Review, 34 BURNS 585, 586 (2008) (internal citation omitted).
129 Three of the three to five jurisdictions that required officers to contribute in § 1983
cases—Los Angeles, Cleveland, and the Illinois State Police—are included in this group of
twenty-eight jurisdictions. Although New York City did not provide information about
payouts in cases not alleging civil rights violations, my research revealed a few instances in
which New York police officers were required to contribute to non-civil rights cases. See Email from Andrea Fastenberg, Records Access Officer, N.Y.C. Law Dep’t, to author (July
12, 2013, 10:43 PDT) (on file with the New York University Law Review) (reporting that an
individual officer contributed $2500 to a $52,500 settlement in Kane v. City of New York);
Docket, Kane v. City of New York, No. 0402519/2006 (N.Y. Gen. Term Dec. 1, 2006) (on

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judgments in less than .13% of the approximately 3074 civil rights and
non–civil rights cases resolved in these twenty-seven jurisdictions
during the study period, and officers contributed just .01% of the over
$296 million paid in settlements and judgments in these cases.130
Indemnification practices in the thirty-seven small and mid-sized
jurisdictions in my study are consistent with practices in the larger
departments.131 None of the 8141 officers employed by these thirtyseven jurisdictions contributed to a settlement or judgment in any
type of civil claim resolved from 2006 to 2011. Nine of the thirty-seven
responding smaller departments did not know how many cases there
were in which plaintiffs had recovered money or how much plaintiffs
had been paid. Respondents in each jurisdiction were confident, however, that officers had not contributed. Based on available evidence,
these thirty-seven departments paid at least $9,387,611 in at least 183
cases.
Available evidence indicates that law enforcement officers are
also almost always provided with defense counsel free of charge when
they are sued. Many statutes appear to require governments to provide officers with legal representation for claims brought under § 1983
or conduct within the scope of officers’ employment, regardless of
whether the department ultimately indemnifies the officer.132 And
although my public records requests did not seek information about
who bears the cost of defense counsel, several government employees
and plaintiffs’ attorneys noted in their responses that officers are
file with the New York University Law Review) (categorizing the case as a “motor
vehicles” case); see also Docket & Settlement Agreement, Kwiatkowski v. City of New
York, No. 05–CV-01893 (E.D.N.Y., Dec. 16, 2006) (on file with the New York University
Law Review) (employment discrimination case in which a defendant contributed $5000 to
a $245,000 settlement). Although I do not know how often NYPD officers have
contributed to non–civil rights cases during the study period, I have no reason to believe
that their contributions to these types of cases are any more frequent than their
contributions to § 1983 cases.
130 See Appendix B (setting out payments and indemnification decisions in these
twenty-seven jurisdictions).
131 See Appendix E (setting out the amount paid by small and mid-sized jurisdictions);
Appendix K (setting out data sources for responsive and nonresponsive small and midsized jurisdictions).
132 See, e.g., N.Y. PUB. OFF. LAW § 17 (Consol. 2005) (providing that police officers
employed in New York State are entitled to a legal defense for any claim arising under 42
U.S.C. § 1983); OHIO REV. CODE ANN. § 2744.07 (West 2013) (providing that Ohio
municipalities must represent officers for suits arising from acts taken in good faith and in
the course and scope of their employment); LAS VEGAS POLICE POLICIES AND
PROCEDURES MANUAL, § 5/105.03 (2007) (on file with the New York University Law
Review) (providing that Las Vegas police officers have a right to representation and
indemnification unless the employee “fails to submit a timely request for defense,” does
not cooperate in the defense, acts outside the scope of his authority, or engages in wanton
or malicious conduct).

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almost always represented by the city’s or county’s attorneys, or by
attorneys hired by union representatives.133
The fact that law enforcement officers almost never contribute to
settlements and judgments in lawsuits brought against them should
not lead one to conclude that indemnification plays a consistent role
in the litigation of police misconduct cases across these jurisdictions.
Anecdotal evidence uncovered during this study suggests the opposite. In some jurisdictions, the indemnification issue is decided during
the first weeks of a case; in other jurisdictions, who will satisfy the
judgment remains an open question until after a jury’s verdict.134 In
some cases, the indemnification issue is hotly contested by the parties;
in other cases the issue never arises.135 Some jurisdictions refuse to
indemnify their officers outright but will agree to satisfy the entirety
of a settlement so long as the individual officer is dismissed from the

133 See, e.g., E-mail from Joel Berger, Plaintiff’s Attorney and Former N.Y.C. Law Dep’t
Exec., to author (Sept. 13, 2012, 18:57 PDT) (on file with the New York University Law
Review) (explaining that the officers’ union provides representation for those officers that
New York City’s Corporation Counsel declines to represent); E-mail from Sean W. Farrell,
Assoc. Chief Legal Counsel, Mass. State Police, to author (July 30, 2012, 14:24 PDT) (on
file with the New York University Law Review) (reporting that when a police officer is
individually sued under § 1983 “he or she is statutorily entitled to be indemnified pursuant
to G.L.c. [sic] 258, sec. 9A for attorney’s fees and judgments up to $1 million”); Telephone
Interview with Lisa Freitag, supra note 98 (reporting that the Illinois Attorney General
decides whether to provide representation and indemnification at the outset of the case
and almost always provides both); Telephone Interview with Laura Gordon, supra note 95
(reporting that the policy of El Paso, Texas is to provide all officers who have been sued
with representation, but never to indemnify); Telephone Interview with Howard Maltz,
Chief Deputy Gen. Counsel, City of Jacksonville (July 10, 2012) (on file with the New York
University Law Review) (reporting that officers are represented by the city or, if there is a
conflict, by union lawyers to whom the city pays $60,000 per year to provide officers with
representation); Telephone Interview with Mia Obciana, supra note 98 (reporting that if
the Honolulu Police Commission decides an officer was acting within the course and scope
of his employment after receiving the complaint, the officer will receive representation and
indemnification); Telephone Interview with Nicole Taub, Office of Legal Advisor, Bos.
Police Dep’t (June 26, 2012) (on file with the New York University Law Review) (reporting
that City Hall is responsible for providing legal counsel for Boston Police Department
officers in civil rights cases).
134 For example, New Jersey and Honolulu decide whether to indemnify their officers at
the beginning of the case—at the same time that they decide whether to provide the
officers with representation. See Appendix I (describing indemnification decisions for the
New Jersey State Police and the Honolulu Police Department). In other jurisdictions,
including New York City, indemnification decisions are not made until the conclusion of
litigation. See infra note 221 and accompanying text (describing indemnification decisions
regarding New York City Police Department officers).
135 For an example of a case in which the indemnification issue was hotly contested, see
infra notes 203–08 and accompanying text (describing a case in which the Massachusetts
State Police declined to indemnify an officer but the state ultimately satisfied the judgment
against the officer).

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case.136 Other jurisdictions appear to have no qualms about writing a
check on an officer’s behalf.
This Article does not systematically explore these differences,
although they are likely meaningful. Variation in government indemnification practices—and other variations across jurisdictions in
judges’ application of qualified immunity and other doctrines, the
strength of the plaintiffs’ bar, city attorney practices, and community
norms137—may well impact whether cases are filed, how plaintiffs’
lawyers frame their clients’ claims, the frequency with which plaintiffs
recover, and the amount plaintiffs receive. Future research should
examine these distinctions to better understand regional variations in
civil rights litigation practice and the extent to which § 1983 doctrine
achieves its deterrence and compensation goals in different parts of
the country. This Article, however, focuses primarily on indemnification outcomes. Despite any variation in the litigation of police misconduct suits, there is almost no variation in who ultimately pays.
C. Indemnification of Punitive Damages Awards
Although civil rights doctrine and most scholarship considering
the question assume that individual officers are personally responsible
for punitive damages, no officer in my study actually satisfied a punitive damages award entered against him. Among the eighty-one
responsive jurisdictions, there were twenty § 1983 police misconduct
cases in which a jury awarded punitive damages against one or more
defendants.138 Juries awarded a total of $9,312,422 in punitive dam136 See, e.g., Telephone Interview with Ursula Richardson, Assistant City Attorney, City
of Tampa (July 31, 2012) (reporting that when Tampa settles cases it will ask that the
individual officer be dismissed so that the settlement is with the city); E-mail from Richard
C. Smith, Litig. Div. Head, Mun. Counselor’s Office, City of Okla. City (July 17, 2012,
05:58 PDT) (on file with the New York University Law Review) (describing Oklahoma
City’s practice of requiring that individual defendants be dismissed before the city will pay
a judgment); Telephone Interview with Nicole Taub, supra note 133 (reporting that, when a
case is settled in Boston, the individual officer is generally dismissed from the case and the
city will then satisfy the settlement).
137 Compare Telephone Interview with Sam Snoddy, Plaintiff’s Attorney (July 12, 2013)
(on file with the New York University Law Review) (reporting that many lawyers in El
Paso, Texas, will not take police misconduct claims because federal district court judges
and the Fifth Circuit are so hostile to the cases, that officers sued in state court are not
going to be indemnified, and that the only cases worth taking are those in which the
plaintiff has a clean background and in which there are outrageous facts), with Telephone
Interview with Kim E. Richman, Plaintiff’s Attorney (Mar. 11, 2013) (on file with the New
York University Law Review) (reporting that police misconduct litigation in New York is a
“volume practice” and that the City pays on average between $5000 and $15,000 for a night
in jail depending on the circumstances of the case).
138 I am aware of one employment discrimination case from the responsive jurisdictions
in which punitive damages were awarded. See E-mail from Kevin Gillen, Yellowstone
Cnty. Attorney, Civil Div., to author (Nov. 14, 2013, 11:39 PST) (on file with the New York

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ages in these twenty cases; trial and appellate courts reduced several
of these judgments such that the total upheld in punitive damages was
$3,991,900. Of the over $3.9 million in punitive damages judgments
entered in those twenty cases, just one officer—an employee of the
Los Angeles Police Department—was required to pay a punitive damages award, and that award totaled $300.139
As I describe in Part II.D, in some instances jurisdictions satisfied
punitive damages awards directly. In other instances, the parties
entered into settlements after the punitive damages verdicts were rendered and, in some cases, affirmed (in whole or part) on appeal.140
But, regardless of the precise manner in which jurisdictions resolved
cases in which punitive damages were awarded, officers were responsible for paying just .008% of the punitive damages awards upheld
during this six-year period. Moreover, for reasons I describe in Part
II.F, the one Los Angeles Police Department officer not indemnified
has never paid the $300 punitive damages judgment entered against
him.141 So, in eighty-one jurisdictions, over a six-year period, no
officer paid a nickel to satisfy punitive damages awards in § 1983
cases.
D. The Practical Irrelevance of Indemnification Prohibitions
Indemnification policies vary widely: Some jurisdictions are statutorily committed to indemnifying officers for suits arising out of their
employment, some limit indemnification to cases in which the officer
was not acting maliciously or in violation of policy, and one jurisdiction in my study prohibits indemnification under any circumstance.142
Jurisdictions also vary in their policies regarding punitive damages:
Some prohibit indemnification of punitive damages; some prohibit
indemnification if an officer’s conduct was “wanton or malicious” or
“intentional . . . or reckless[ ],” which are standards sufficient for punitive damages awards; and some allow indemnification of punitive
University Law Review) (reporting one $145,000 punitive damages judgment against three
members of the Yellowstone County Sheriff’s Office in favor of three employee plaintiffs
who had brought employment discrimination and retaliation claims against their
supervisors and employer). Note that the defendants did not contribute to the satisfaction
of this jury award. See id. I am aware of no other non-civil rights case in which punitive
damages were awarded in the responsive jurisdictions during the study period.
139 See Appendix F (setting out the punitive damages awards against officers in civil
rights cases in the eighty-one jurisdictions studied).
140 See infra Part II.D.2 (describing these practices in more detail).
141 See infra notes 197–202 and accompanying text (describing the case in which a Los
Angeles Police Department officer was not indemnified for a $300 punitive damages
judgment).
142 See supra notes 93–99 and accompanying text (describing variation in
indemnification statutes and policies across jurisdictions in my study).

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damages awards under limited circumstances.143 Some scholars have
concluded that indemnification is uncertain based on these statutory
and policy variations.144 My data shows that this conclusion, while reasonable, is wrong. Despite the wide variation in indemnification statutes, there is little variation in outcome—officers almost never pay.
On its own, the public records response data I collected offers
scant information about how it is that officers almost never personally
satisfy settlements and judgments in police misconduct suits—particularly in jurisdictions that seemingly prohibit indemnification. Accordingly, I endeavored to learn more about indemnification practices in
the jurisdictions that responded to my records requests. Although I do
not have comprehensive information about how jurisdictions with
statutory limitations on officer indemnification nevertheless indemnify most or all of their officers, I did learn of instances in which government attorneys crafted settlements that they believed sidestepped
indemnification prohibitions, and of instances in which governments
indemnified officers in violation of governing law.
1. Settlement in Lieu of Indemnification
Only one jurisdiction in my study—El Paso, Texas—reported a
practice of never indemnifying police officers.145 Yet no El Paso
officer personally satisfied settlements or judgments against him
during the study period.146 The city of El Paso did, however, pay
$279,000 to settle sixteen civil rights cases against its officers between
2006 and 2011. The deputy city attorney in El Paso explained that,
because the city is responsible for paying officers’ attorneys’ fees, it
sometimes settles claims against officers because it would be less
expensive to pay a small settlement than to continue to pay for the
defense of the case.147 From the deputy city attorney’s perspective,
paying a settlement on behalf of an officer to avoid the cost of further
litigation should not be understood as equivalent to indemnifying that
officer.148

143 N.Y. GEN. MUN. LAW § 50-k(3) (McKinney 2007); see also supra note 97 and
accompanying text (describing variations in indemnification statutes regarding punitive
damages across jurisdictions in my study).
144 See supra notes 74–76 and accompanying text.
145 Telephone Interview with Laura Gordon, supra note 95.
146 Id.
147 Id.
148 See id.

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2. Indemnification of Punitive Damages After Trial
Twenty times between 2006 and 2011, juries awarded punitive
damages in § 1983 cases brought against officers employed by the
New York City Police Department, the Los Angeles Police Department, the Los Angeles Sheriff’s Department, the California Highway
Patrol, the Las Vegas Metropolitan Police Department, the San Bernardino Sheriff’s Department, the Prince George’s County Police
Department, the Oklahoma City Police Department, and the Albuquerque Police Department. In nineteen of those twenty cases, individual officers were not required to satisfy the punitive damages
awards entered against them.
California allows indemnification of punitive damages if the
“governing body of that public entity” finds that “[p]ayment . . . would
be in the best interests of the public entity.”149 Presumably, the
indemnification of punitive damages awards entered against
employees of the Los Angeles Sheriff’s Department, the California
Highway Patrol, and the San Bernardino Sheriff’s Department were
justified under this provision.150 Albuquerque requires indemnification of its officers for punitive damages if the officer is found to be
acting within the course and scope of his employment.151 The Albuquerque Police Department’s decision to settle a case after the jury
awarded $873,500 in punitive damages against an officer was presumably considered consistent with the governing indemnification
provision.152
But four jurisdictions in which punitive damages were awarded—
Las Vegas, New York, Oklahoma City, and Prince George’s County—
appear to prohibit indemnification of punitive damages. Laws governing Prince George’s County153 and Oklahoma City154 explicitly
149

CAL. GOV’T CODE § 825(b) (West 2012).
Note that, in some instances, instead of satisfying the punitive damages judgment
directly, the case was settled after trial or appeal. See, e.g., E-mail from Kim Hunter, Gen.
Counsel, Dep’t of the Cal. Highway Patrol, to author (Apr. 22, 2013, 15:21 PDT) (on file
with the New York University Law Review) (reporting that, after the court of appeals
affirmed the $55,000 punitive damages judgment entered against two California Highway
Patrol officers, the parties went into mediation and settled the case for $2 million—with
the officers paying nothing).
151 See N.M. STAT. ANN. § 41-4-4.C (2013) (“A governmental entity shall pay any award
for punitive or exemplary damages awarded against a public employee under the
substantive law of a jurisdiction other than New Mexico . . . if the public employee was
acting within the scope of his duty.”).
152 For additional information about this case, see infra notes 181–86 and accompanying
text.
153 See Letter from Jamar B. Herry, to author, supra note 96, at 2 (attaching Prince
George’s County risk management policy stating that “[a]ll payments and settlements for
liability claims shall be limited to compensatory damages”).
150

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prohibit indemnification of punitive damages. Las Vegas prohibits
indemnification when “the employee’s actions . . . [are] wanton and
malicious”155 and New York City law provides that indemnification
“shall not arise where the injury or damage resulted from intentional
wrongdoing or recklessness on the part of the employee”156—definitions that would, presumably, be satisfied by a jury’s finding that punitive damages were appropriate.157
Despite these prohibitions, officers in these four jurisdictions
avoided satisfying punitive damages judgments entered against them.
How can this be so? Some jurisdictions appear to have indemnified
officers in violation of governing law. Although Prince George’s
County prohibits the indemnification of punitive damages awards, the
county indemnified a $50,000 punitive damages judgment entered
against one of its officers.158 Juries have awarded punitive damages
against New York City Police Department officers six times between
2006 and 2011, with punitive damages awards totaling over $2.8 million.159 Although New York City cannot legally indemnify employees
for damages arising from intentional or reckless conduct, it did not
require its officers to satisfy the punitive damages awarded in these six
cases.160
Jurisdictions may sidestep prohibitions against indemnification of
punitive damages by vacating the punitive damages verdict as part of a
post-trial settlement. One such example can be found in Las Vegas. A
plaintiff, alleging excessive force by Las Vegas police officers, won a
jury verdict of $175,000 in compensatory damages and $5000 in puni154 See OKLA. STAT. tit. 51, § 162.D (2011) (“The state or a political subdivision shall
not, under any circumstances, be responsible to pay or indemnify any employee for any
punitive or exemplary damages rendered against the employee.”).
155 Letter from Charlotte M. Bible, Assistant Gen. Counsel, Las Vegas Metro. Police
Dep’t, to author (Oct. 9, 2012) (on file with the New York University Law Review)
(providing the Las Vegas Metropolitan Police Department’s official indemnification
policy).
156 N.Y. GEN. MUN. LAW § 50-k(3) (McKinney 2007).
157 In Smith v. Wade, 461 U.S. 30, 51 (1983), the Supreme Court held that punitive
damages could be awarded against a defendant in a § 1983 case if the plaintiff proved that
the defendant acted with “reckless or callous disregard for the plaintiff’s rights” or
intentionally violated the law.
158 See Prince George’s Cnty. v. Longtin, 988 A.2d 20, 26–27 (2010) (affirming a
modified judgment of $50,000 in punitive damages); E-mail from Jamar B. Herry, Legal
Advisor, Prince George’s Cnty. Police Dep’t, to author (May 9, 2013, 6:36 PDT) (on file
with the New York University Law Review) (“Prince George’s County did indemnify the
officer in Prince George’s County Maryland v. Longtin, 190 Md. App. 97 (2010).”).
159 See Appendix F.
160 In three cases, the city directly satisfied the punitive damages judgments; in the other
three cases, the parties vacated the punitive damages judgment as part of a post-trial
settlement. The details of these cases are set out in Appendix I, in the source data for the
New York City Police Department.

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tive damages against one officer.161 After the compensatory and punitive damages verdicts were affirmed on appeal, the case was
remanded to the district court to enter judgment.162 Two months later,
the parties settled the case for $400,000.163 The entirety of the settlement was paid by Las Vegas.164
The Oklahoma City Office of the Municipal Counsel reported a
similar incident. One case resolved between 2006 and 2011 resulted in
a jury verdict against two officers for $22,000 in compensatory damages and $2000 in punitive damages, along with an award of
$79,223.78 for attorneys’ fees.165 The office’s litigation division head
wrote:
The officers filed a claim for indemnification under 51 O.S.
§ 162(B). Because it is arguable under Oklahoma law that a municipality cannot indemnify any employee in which punitive damages
are awarded (because they would not be acting in good faith), the
parties agreed to vacate the Judgment against the officers; the City
and the plaintiffs agreed to vacate the City’s award of summary
judgment, and the plaintiffs agreed to dismiss any claim for punitive
damages in exchange for an entry of Judgment against the City in
the amount of $101,223.78.166

It also violates Ohio law for political subdivisions to indemnify
employees for punitive damages.167 An assistant Columbus city
attorney, responding to my request for public records, reported that
there was one instance, approximately twenty years ago, when a case
went to trial and the jury returned a punitive damages verdict against
the officer. Yet the officer did not pay this judgment. The attorney
wrote: “Every one in the City Attorney’s Office felt it was completely
unwarranted and we settled the case as a claim while the matter was
being appealed, since we cannot, by law, pay a judgment for punitive
damages.”168
161

Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1080 (9th Cir. 2009).
Id. at 1087.
163 See Letter from Charlotte M. Bible, Assistant Gen. Counsel, Las Vegas Metro.
Police Dep’t, to author (Sept. 13, 2012) (on file with the New York University Law Review)
(reporting a $400,000 settlement paid by Las Vegas to Christopher Tortu on May 7, 2009).
164 Id. (reporting that Las Vegas has not declined to indemnify an employee).
165 Letter from Richard C. Smith, Litig. Div. Head, Mun. Counselor’s Office, City of
Okla. City, to author, at 2 (July 13, 2012) (on file with the New York University Law
Review) (providing case information).
166 Id. at 3.
167 OHIO REV. CODE ANN. § 2744.07(2) (West 2006).
168 Letter from Glenn B. Redick, Chief Litig. Attorney, City Attorney’s Office,
Columbus, Ohio, to author at 2 (June 20, 2012) (on file with the New York University Law
Review).
162

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E. Indemnification of Officers Disciplined, Terminated,
and Prosecuted
Some scholars have hypothesized that indemnification, even if
widespread, would likely be denied to officers who are disciplined or
terminated by their department or criminally prosecuted.169 There are
several instances in my study in which officers who were disciplined or
fired by their agency or criminally prosecuted were also required to
contribute to settlements.170 Yet available evidence suggests that
many officers who engage in egregious misconduct do not contribute
to settlements and judgments—even if they are disciplined or terminated by their department, criminally prosecuted, or even imprisoned.
There are several high-profile cases between 2006 and 2011 in which
officers were disciplined, terminated, or criminally prosecuted, but
paid nothing toward the settlements of civil rights lawsuits brought
against them.
Take, for example, the civil case brought by sixteen-year-old Juan
Vasquez, who was beaten after being chased by three Denver police
officers. An officer stomped on the boy’s back while using a fence for
leverage, breaking his ribs and causing him to suffer kidney damage
and a lacerated liver. Three officers were fired and one was criminally
charged with—though acquitted of—first-degree felony assault.171
The City of Denver paid $885,000 to settle Vasquez’s civil suit.172 No
officer contributed to the settlement.173
Another example concerns the case brought by the estate of
Kathryn Johnston, a 92-year-old Atlanta woman who was shot and
killed by Atlanta police officers after they illegally raided her home.174
169 See supra note 77 and accompanying text (describing the hypothesis that officers
terminated, disciplined, or criminally prosecuted will not be indemnified).
170 See, e.g., Appendix H (describing cases of nonindemnification, including several in
which officers are known to have been disciplined or criminally punished); see also infra
notes 203–20 (describing cases in which the Massachusetts State Police and the Los
Angeles Sheriff’s Department have declined to indemnify officers who were criminally
punished and disciplined or fired by their employers).
171 Christopher N. Osher, LaCabe Fires 3 Officers in Stomping of Teen: As Denver’s
Safety Manager Retires, He Is Assailed for the Dismissals by the President of the Police
Union, DENVER POST, July 1, 2010, at A1.
172 Three Denver Cops Fired for Excessive Force Against Hispanic Teen,
EXAMINER.COM (June 30, 2010), http://www.examiner.com/article/three-denver-cops-firedfor-excessive-force-against-hispanic-teen (reporting that Denver paid $885,000 to settle the
lawsuit in late 2008).
173 E-mail from David V. Cooke, Assistant Dir. of Litig., Denver Dep’t of Law, to
author (Oct. 9, 2012, 19:54 PDT) (on file with the New York University Law Review)
(stating that it is his understanding that officers were indemnified for all of the settlements
and judgments paid between September 2008 and December 2011).
174 Shaila Dewan & Brenda Goodman, Prosecutors Say Corruption in Atlanta Police
Department Is Widespread, N.Y. TIMES, Apr. 27, 2007, at A18.

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Officers involved in the shooting later admitted that they planted
marijuana in Johnston’s home after her death and submitted as evidence cocaine that they falsely alleged had been purchased at her
home.175 Three officers pleaded guilty to offenses related to the
shooting and coverup.176 They were sentenced to between five and ten
years in federal prison and were ordered to pay $8180 restitution—the
cost to bury Johnston.177 Another nine officers were fired or disciplined, or resigned, following the incident.178 The City of Atlanta paid
$4.9 million to settle the civil suit brought by Johnston’s estate.179 No
officers contributed to the settlement.180
A final example concerns the civil case brought by Cynthia
Seeley against Albuquerque police officer Christopher Chase. Chase
responded to a call for assistance at the apartment of Cynthia Seeley’s
girlfriend following a domestic dispute, and then raped Seeley in his
patrol car.181 Chase was criminally indicted for sexually assaulting
Seeley; he was additionally charged with sexually assaulting four other
women and girls, physically abusing two additional women, and kidnapping or falsely imprisoning five men and boys.182 Chase was fired
from his job and sentenced to fifteen years in prison.183 In Seeley’s
civil case, a jury awarded her $69,880 in compensatory damages and
$873,500 in punitive damages against Chase.184 The case settled after
trial for $1,000,000.185 Chase did not contribute to the settlement.186
175

Id.
Id.
177 Bill Rankin, Ex-Cops Get 5–10 Years for Drug Raid: Judge Agrees Atlanta Police
Quotas Influenced Officers, ATLANTA JOURNAL-CONSTITUTION, Feb. 25, 2009, at C1.
178 Ernie Suggs, Firings End Botched Raid Case, ATLANTA JOURNAL-CONSTITUTION,
June 10, 2010, at A1.
179 City of Atlanta and Kathryn Johnston’s Family Settle Wrongful Death Lawsuit for
$4.9 Million, 11 ALIVE (Aug. 17, 2010, 11:41 PM), http://www.11alive.com/news/local/story
.aspx?storyid=150325.
180 See E-mail from Kristen Denius, Assistant City Attorney, City of Atlanta, to Brian
Cardile, Student, UCLA School of Law (Feb. 1, 2013, 13:20 PST) (on file with the New
York University Law Review) (“I am not aware of any circumstances in the period covered
by this report in which individual officers contributed to any payment of claims or damage
awards.”); E-mail from Kristen Denius, Assistant City Attorney, City of Atlanta, to author
(Jan. 13, 2014, 08:40 PST) (on file with the New York University Law Review) (confirming
that officers did not contribute to the Johnston settlement).
181 Seeley v. Chase, 443 F.3d 1290, 1292 (10th Cir. 2006).
182 Id.
183 Joline Gutierrez Krueger, Ex-APD Officer Gets 15 Years in Prison, ALBUQUERQUE
TRIB., Mar. 30, 2006, at A2.
184 Seeley, 443 F.3d at 1292 (describing the jury’s verdict).
185 See Letter from Roberta Duran, Fiscal Officer, Legal Dep’t Records Custodian,
Office of the City Attorney, City of Albuquerque, to author, at 4 (July 2, 2012) (on file
with the New York University Law Review) (appending spreadsheet of cases closed
between 2001 and 2011 and their settlement or judgment amounts).
176

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Many more officers were likely disciplined, terminated, or criminally prosecuted—yet still indemnified—during my study’s six-year
period. Although evidence of criminal prosecutions of police officers
is hard to come by, the Cato Institute’s National Police Misconduct
Reporting Project has been tracking civilian complaints of police misconduct and resulting prosecutions. The Project tracked over 8300
“credible reports involving allegations of police misconduct” across
the country, involving nearly 11,000 officers, from April 2009 to
December 2010.187 During those twenty-one months, the Project
reports, criminal charges were brought against 3238 officers related to
these charges of police misconduct, and 1063 were convicted.188 Based
on these figures, there may have been approximately 11,100 criminal
prosecutions with a third ending in convictions across the country
during the six-year period of my study. If the jurisdictions in my
study—which employ approximately 20% of the officers in the
country—employed 20% of the officers criminally charged and convicted, there may have been approximately 2220 prosecutions with
one-third ending in convictions in these jurisdictions during the study
period.
These figures are, admittedly, very rough estimations. There may
well have been many instances in which officers were criminally prosecuted but no civil suit was filed. Nevertheless, these figures suggest
that over 2000 officers may have been criminally charged in the jurisdictions in my study between 2006 and 2011. Even if every officer who
contributed to settlements and judgments in my study were among the
approximately 2200 officers criminally prosecuted—and there is no
reason to believe this is so—only approximately 1.6% of the officers
estimated to have been charged in these jurisdictions would have contributed to settlements in civil suits.
F. Exceptions to the Rule
Officers are almost always indemnified, despite differences in
indemnification statutes and, in some instances, prohibitions on
indemnification. Officers are virtually always indemnified even if they
have been disciplined, terminated, or criminally prosecuted as a result
186 See Telephone Interview with Kathryn Levy, Deputy City Attorney, City of
Albuquerque (June 13, 2013) (reporting that the applicable indemnification statute does
not clearly obligate Albuquerque to indemnify for punitive damages but that they have
considered each award on a case-by-case basis and have not had an instance in which they
declined to indemnify a punitive damages award).
187 See David Packman, The Problem with Prosecuting Police in Washington State,
CATO INST. (Feb. 27, 2011, 12:55 AM), http://www.policemisconduct.net/the-problem-withprosecuting-police-in-washington-state/.
188 Id.

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of their conduct. Yet, there are between thirty-seven and thirty-nine
cases—in New York City, Cleveland, Los Angeles, and, possibly, Jacksonville and Illinois—in which officers have been required to contribute to settlements and judgments entered against them. This Part
examines those cases.
In five of the thirty-seven to thirty-nine cases, officers allegedly
engaged in misconduct while off duty. I have kept these cases in the
data set, however, because the officers appear to have asserted their
law enforcement authority in some manner during the engagement.189
In seven of the thirty-seven to thirty-nine cases, officers were alleged
to have engaged in sexual misconduct.190 Four cases involved allegations of abuse of process (discouraging the plaintiff from filing a
civilian complaint, coercing a false affidavit from another officer, and
fabricating evidence against the plaintiff). Twenty-three of the cases
involved more typical § 1983 claims, including false arrest, unreasonable search, and excessive force. I have no details about the facts of
two of the cases.
Just one officer—who was off duty when his dog attacked the
plaintiff—was personally responsible for satisfying a settlement in full,
totaling $16,500, after all claims against the city and other defendantofficers were dismissed.191 The other thirty-eight to forty officers192
were required to contribute between $250 and $25,000 to larger settlements and judgments. As Figure 1 illustrates, ten officers were
required to contribute $1000; nine officers were required to contribute
$5000; four officers were required to contribute $500; three officers
were required to contribute $2500; two officers were required to contribute $250; and the remaining officers were required to contribute
between $300 and $25,000 toward settlements and judgments.193 The
189

See supra note 104 and Appendix H for a description of the details of these cases.
In two of these cases, Baird and Oliveras, the officers were also off duty. See
Appendix H for additional details about these cases.
191 See McNamara v. City of New York, No. 06-CV-5585, 2009 WL 735135, at *7–8
(S.D.N.Y. Mar. 20, 2009) (dismissing all claims against New York City and other
defendant-officers).
192 Thirty-five New York City Police Department officers were required to contribute to
a total of thirty-four cases. Two officers contributed to settlements in two of those cases—
Wells and Sellers—but one of the officers, who contributed to the settlement in Sellers, was
also required to contribute to the settlement in Lipka. In the remaining three-to-five cases
from the other two-to-four jurisdictions, only one officer was required to contribute per
case.
193 Figure 1 does not include the two possibly relevant cases from Jacksonville and
Illinois, as there is no definitive information about the amount contributed by officers in
either case. In addition, although officers were “required to contribute” these amounts, I
do not have proof that these contributions were ever made, and, in at least one case, I have
proof that the officer did not satisfy the punitive damages judgment for which he was
personally responsible. See infra notes 196–201.
190

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median contribution was $5000 for officers alleged to have engaged in
misconduct while off-duty; $3750 for officers alleged to have engaged
in sexual misconduct; $1625 for those alleged to have abused process;
and $1000 for officers named as defendants in cases alleging false
arrest, unreasonable search, and excessive force.

DISTRIBUTION

FIGURE 1
OF OFFICER PAYMENTS

Number of Officers

12
10
8
6
4
2
0
0

5000

10000

15000

20000

25000

Amount of Payment

The indemnification policies in effect in these jurisdictions cannot
explain why these jurisdictions, but not others, have required officers
to contribute: Ohio law appears to require municipalities to indemnify
their officers for all actions taken in good faith and within the course
and scope of their employment,194 yet Cleveland police officers were
required to contribute to settlements and judgments proportionally
more often than any other jurisdiction in my study. New York’s
statute is more limited, entitling officers to indemnification only when
their actions were in the course and scope of employment, did not
violate any department rule or regulation, and did not involve intentional wrongdoing or recklessness.195 Yet, even with these limitations,
New York has paid all but .03% of the dollars spent in settlements and
judgments during my study period. Other jurisdictions, with similarly
restrictive indemnification provisions, completely indemnified all of
their officers during the study period.
Officials in this small handful of jurisdictions did not comment
about why they required officers to contribute to settlements in police
194
195

See supra note 93 (describing the Ohio indemnification statute).
N.Y. GEN. MUN. LAW § 50-k (McKinney 2013).

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misconduct suits, nor did they explain why these officers (but not
others) were required to contribute. It may be that officials in the
Cleveland Police Department and the New York Police Department—
and possibly the Jacksonville Sheriff’s Office and the Illinois State
Police—required officers to contribute to settlements as some form of
punishment. Consistent with this hypothesis, plaintiffs’ attorneys practicing in New York report that when the New York City Police
Department’s Internal Affairs Bureau or Civilian Complaint Review
Board substantiates an allegation of misconduct, the City’s Comptroller (who approves settlements) pushes for a contribution from the
officer in order to punish the officer and send a message to others.196
The decision by the City of Los Angeles not to indemnify its
officer for a $300 punitive damages judgment does not appear to have
been a form of punishment; instead, it appears the denial was a matter
of administrative convenience. In the case, the plaintiff alleged that a
Los Angeles police officer handcuffed her too tightly and refused to
loosen the cuffs, causing nerve damage.197 The jury returned a verdict
of $160,000 in compensatory damages and $300 in punitive damages.198 The city paid the $160,000 award, and attorneys’ fees, but did
not indemnify the officer for the $300 in punitive damages.199 The
defense attorney in the case reportedly asked plaintiff’s counsel to
agree to dismiss the punitive damages judgment, stating that he did
not want to have to petition city council to have punitive damages
paid by the city.200 Plaintiff’s counsel replied that he would agree to
dismiss the punitive damages judgment if the Los Angeles Police
Department agreed to implement better training regarding hand196 See E-mail from Joel Berger, Plaintiff’s Attorney and Former N.Y.C. Law Dep’t
Exec., to author (Sept. 27, 2012, 16:16 PDT) (on file with the New York University Law
Review) (noting that there have been some cases in which “the City didn’t represent the
officer,” but “it settled on behalf of the City, and the officer whom it didn’t represent had
to kick in some nominal amount as part of the final settlement,” and adding, “in my day
[as a New York City Law Department executive from 1988–1996], the
Comptroller’s office (Holtzman, then Hevesi) occasionally would insist on such an
arrangement as a precondition to approving the City’s share of the settlement, the Law
Department would resist, but in the end the Comptroller’s office would prevail because the
Law Department can’t settle without the Comptroller’s approval”); Telephone Interview
with Brett Klein, Plaintiff’s Attorney (July 16, 2013) (reporting that the current
comptroller also pushes for contributions from officers against whom charges of
misconduct have been substantiated).
197 Taylor-Ewing v. City of Los Angeles, No. 07-CV-05556, 2010 WL 6344200 (C.D. Cal.
2012).
198 Id.
199 See Telephone Interview with V. James DeSimone, Plaintiff’s Attorney (Apr. 25,
2013) (describing DeSimone’s failed efforts to get the city to pay the punitive damages
award).
200 Id.

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cuffing arrestees.201 Defense counsel would not agree to this condition, but never petitioned the city council to indemnify the officer for
the punitive damages judgment. Plaintiff’s counsel reported that he
never sought to collect the $300.202
There is one additional case resolved during the study period in
which a law enforcement agency made the formal decision to deny an
officer’s request for indemnification; notably, though, the officer did
not ultimately contribute to the settlement in the case. David Oxner,
an off-duty Massachusetts State Police officer, assaulted Mark
Maimaron in a parking lot outside a bar.203 Maimaron sued Oxner and
the Massachusetts State Police. The Commonwealth of Massachusetts
refused to indemnify Oxner, who had pleaded guilty to assaulting
Maimaron, was found guilty of numerous administrative violations,
and was suspended without pay for four months.204 The Commonwealth settled all of Maimaron’s claims (except those against Oxner)
for $55,000; then, in binding arbitration between Maimaron and
Oxner, Maimaron was awarded over $400,000 in damages and attorneys’ fees.205 After the arbitration, Oxner assigned his right to seek
indemnification from the Massachusetts State Police to Maimaron in
exchange for a release from the arbitration award.206 Maimaron then
sued the Commonwealth to recover the arbitration award and his
attorneys’ fees.207 Ultimately, the case settled for $580,000; the Commonwealth satisfied the settlement in full.208
In the private law context, scholars have observed that plaintiffs
and uninsured or underinsured defendants may work together to
target the defendants with the deepest pockets.209 Maimaron v. Oxner
offers isolated evidence of this same litigation dynamic in the civil
201

Id.
See id. (“[T]hat issue got dropped . . . .”).
203 Defendant-Appellant’s Brief at 7, Maimaron v. Commonwealth, 865 N.E.2d 1098
(Mass. May 3, 2006) (No. SJC-09728) (on file with the New York University Law Review).
204 Id. at 10–11.
205 Id. at 2–3.
206 Id. at 3.
207 Id. at 4.
208 See E-mail from Sean W. Farrell, Assoc. Chief Legal Counsel, Mass. State Police, to
author (Aug. 26, 2013, 08:47 PDT) (on file with the New York University Law Review)
(reporting that the case settled after the Massachusetts Supreme Court ruled that the
Department “should have sought declaratory judgment before denying the indemnification
request”); E-mail from Max D. Stern, Plaintiff’s Attorney, to author (Aug. 25, 2013, 14:59
PDT) (on file with the New York University Law Review) (confirming that Oxner did not
contribute to the settlement).
209 See, e.g., Tom Baker, Transforming Punishment Into Compensation: In the Shadow
of Punitive Damages, 1998 WIS. L. REV. 211, 222 (“The plaintiff’s lawyer is not unassisted
in constructing the case to target the best coverage or the deepest pocket. The uninsured
(or underinsured) defendant helps out.”).
202

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rights context: When the Commonwealth of Massachusetts denied its
officer indemnification, the plaintiff and the unindemnified defendant
worked together to ensure the deep-pocketed Commonwealth
remained responsible for compensating the plaintiff.
A final, important exception to common practice concerns Los
Angeles County. The Los Angeles County Sheriff’s Department historically indemnified its deputies.210 Seven or eight years ago, the
Department’s risk manager began agitating against “blanket indemnification.”211 In recent years, the county board of commissioners
declined to indemnify four officers for verdicts entered in two cases.
Although these cases were still pending at the end of 2011—and,
therefore, do not fall within the study period—they merit discussion
because they deviate significantly from the norm.
In one case, three L.A. County Sheriff’s deputies were sued for
assaulting an inmate at the L.A. County Jail.212 The jury awarded the
plaintiff $255,000 in compensatory damages and $150,000 in punitive
damages—$50,000 against each of the three deputies.213 The County
of Los Angeles did not indemnify the three deputies for any of the
compensatory and punitive damages judgments, nor did they indemnify the deputies for the attorneys’ fees awarded to plaintiffs.214 The
defendants in the case have sued the County of Los Angeles for violating the terms of its defense and representation agreement. The
sheriff’s deputies contend that they were denied indemnification
because they declined to testify at trial for fear that their testimony
could be used against them in a criminal prosecution.215
The case is scheduled to go to trial in December 2014.216 Unlike
other indemnification denials, these three deputies would be denied
indemnification for the entirety of the judgment and attorneys’ fees if
the county’s decision is upheld. The amount at stake is also more than
the total amount that officers across all eighty-one jurisdictions were
required to pay during the study period.
210 See Telephone Interview with Captain Shaun Mathers, Risk Manager, Los Angeles
Sheriff’s Department (Apr. 23, 2013) (explaining that the Department was “indemnifying
everyone” until a few years ago).
211 Id.
212 See Robert Faturechi, Inmate Wins $405,000 in Jail Attack; A Federal Jury Finds He
Was Pepper-Sprayed by Three L.A. County Sheriff’s Deputies, L.A. TIMES, Sept. 10, 2010,
at AA4 (describing the facts of the case); Verdict and Settlement Summary, Franco v.
Gennaco, No. 09-cv-00893, 2010 WL 4079740 (C.D. Cal. 2010) (describing the jury’s
verdict).
213 Verdict and Settlement Summary, supra note 212.
214 Telephone Interview with Arnoldo Casillas, Plaintiff’s Attorney (Apr. 23, 2013).
215 Id.
216 Docket in Chang v. Cnty. of Los Angeles, No. BC479858 (Cal. Super. Ct. May 13,
2013) (on file with the New York University Law Review).

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In a second case, also brought by a jail inmate against the County
of Los Angeles and its Sheriff’s deputies, the plaintiff accused ten deputies of assaulting him four times over the course of three days. The
jury found four defendants liable and awarded the plaintiff $365,001 in
compensatory and punitive damages.217 Included in this award was a
$150,000 punitive damages award against one deputy, Gabriel
Gonzalez, who was in prison for an unrelated charge at the time of the
jury verdict.218 The County paid the $100,000 compensatory damages
award against Gonzalez and the compensatory and punitive damages
awards against the other three deputies. But it represented to the district court judge that it would not indemnify Gonzalez for his punitive
damages award because, “in the County’s view, he [was] in prison and
[was] judgment proof.”219 The district court dismissed the plaintiff’s
suit against the county challenging its decision to deny Gonzalez
indemnification on the punitive damages judgment.220
Based on these two cases, both pending at the end of the study
period, it is too early to predict the path Los Angeles County’s future
indemnification decisions will take. It is possible that these two indemnification denials are sui generis: One made because deputies refused
to testify and the other made because the deputy was incarcerated and
judgment proof. It is also possible that these cases reflect the county’s
increasing reluctance to indemnify.
G. Tactical Benefits of Withholding Indemnification Decisions
My e-mail exchanges and telephone calls with government officials and plaintiffs’ lawyers, and briefs and opinions from cases in
these jurisdictions, revealed another litigation dynamic at play:
Although my study shows that officers almost never contribute to settlements and judgments, I found anecdotal evidence that some government attorneys affirmatively use the possibility that they will deny
officers indemnification to gain settlement leverage, limit punitive
damages verdicts, and reduce punitive damages verdicts after trial—
only to indemnify their officers once the cases are ultimately resolved.
To be sure, government attorneys may have legitimate reasons
for delaying indemnification decisions until the conclusion of litigation. As a senior lawyer for New York City’s Corporation Counsel
explained in 1994, even if it indemnifies officers in 99% of the cases,
217

Jimenez v. Franklin, 680 F.3d 1096, 1098 (9th Cir. 2012).
Jimenez v. Cnty. of Los Angeles, No. CV 12-5691-RGK, 2013 WL 2155222, at *2
(C.D. Cal. 2013) (noting that Gonzalez was incarcerated for sexually assaulting women in
his squad car at the time of the jury verdict).
219 Jimenez v. Franklin, 680 F.3d at 1098.
220 Jimenez v. Cnty. of Los Angeles, No. CV 12-5691-RGK, 2013 WL 2155222, at *1.
218

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the City “reserve[s] the right to assess all of the evidence in the case.
We do not in advance pledge the taxpayers’ money to indemnify an
individual if it turns out that the officer engaged in conduct under
which indemnification is not permitted.”221 I do not offer any opinion
about whether, or how often, government attorneys decide to indemnify and then withhold that decision to gain strategic advantage, and
how often government attorneys truly do not make a final indemnification decision until the conclusion of a case. Regardless of the reason
for delay, the failure to make a final indemnification decision carries
with it tactical litigation benefits for defendants.
During litigation, the threat that a city will deny indemnification
may discourage plaintiffs from proceeding with claims against individual officers. In El Paso, Texas, for example, a deputy city attorney
reported that officers are never indemnified: Officers are required to
satisfy any judgment against them.222 As a matter of practice, however, no officers in El Paso contributed to any settlement or judgment
during the study period. This is in part because, the deputy city
attorney believes, plaintiffs’ attorneys are less likely to pursue cases
against individual officers, knowing that they are judgment proof. If
the plaintiff’s Monell claim against the city is dismissed because the
plaintiff cannot prove that the city has a policy, practice, or custom
that caused the alleged constitutional violation,223 the plaintiff’s
attorney may decide not to proceed further with the case.224
Government attorneys may also withhold indemnification decisions to gain leverage during settlement negotiations. One risk manager reported that, when a lawsuit is filed, the county makes an initial
decision about whether to indemnify the officer but does not finalize
the decision until the end of the case because indemnification can be a
factor in settlement negotiations with the plaintiff’s attorney.225 The
risk manager reported regularly sending officers a reservation-ofrights letter at the beginning of the case—stating that the county has
decided to represent and indemnify the officer but that it reserves the
right to reverse their decision. Sometimes, an officer will call after
221 Joel Berger, New York City Corporation Counsel’s Viewpoint, 9 J. SUFFOLK ACAD.
L. 69, 74–75 (1994); see also Ilann M. Maazel, Punitive Damages and Indemnification: What
Should Juries Be Told?, N.Y. L.J., Mar. 20, 2012, at 3 (“Many municipalities, including the
City of New York, take the litigation position that indemnification decisions are not made
until after trial.”).
222 Telephone Interview with Laura Gordon, supra note 95.
223 See supra Part I.A.2 (outlining the doctrine governing Monell claims).
224 Telephone Interview with Laura Gordon, supra note 95.
225 Telephone Interview with Steven T. Robles, Dir. of Risk Mgmt., Cnty. of San
Bernardino (July 17, 2012).

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receiving the letter, anxious that he may not be indemnified.226 The
risk manager reported that he calms officers by explaining that the
reservation-of-rights letter is part of the process that benefits both
officers and the department, and that they will be indemnified in the
end.227
Government attorneys may also gain tactical advantage during
trial by withholding indemnification decisions. The City of New York
has indemnified every punitive damages judgment entered against
officers represented by the city from 1996 until at least 2011.228 Yet
the city maintains that indemnification decisions are not made until
after trial.229 During trial, government attorneys use the possibility
that they will refuse to indemnify their officers as reason to “ask[ ]
courts to give jury instructions implying that officers will have to pay,”
“ask courts to hold hearings on officers’ ability to pay,” and “ask[ ]
officers on the witness stand about their salaries, numbers of children,
and anything else that might convey to the jury the impression that
the officers’ personal finances are in play.”230
In one case, Scherer v. City of New York, plaintiff’s counsel
requested a jury instruction stating that the City of New York has the
authority to indemnify officers for punitive damages entered against
them.231 Defense counsel objected to the instruction:
226

Id.
Id.
228 See Defendant’s Supplemental Response to Plaintiff’s Second Set of Interrogatories
at 5–6, Gyasi v. City of New York, No. 05-CV-9453 (S.D.N.Y. Nov. 27, 2006) (reporting
that the City of New York indemnified every punitive and compensatory damages
judgment entered against NYPD officers it represented between 1996 and 2006); see also
Appendix F (reporting indemnification of all punitive damages judgments entered
between 2006 and 2011); Appendix I (describing sources of data about punitive damages
awards during study period, including punitive damages awards against two defendants the
City did not represent).
229 See supra note 221 (describing New York City’s practice of waiting until the close of
litigation to decide whether to indemnify); see also infra notes 230–37 (describing several
cases in which defense counsel argued that New York City might decide not to indemnify
an officer after trial).
230 Letter from Joel Berger, Plaintiff’s Attorney, in Gordon v. City of New York, to
Judge Shira A. Scheindlin, (Jan. 27, 2009) (on file with the New York University Law
Review) (seeking information about defendants’ indemnification decisions from 2006 to
2009, and explaining defendants’ practices that justify the disclosure of this information).
In a discovery conference in another case, Gyasi v. City of New York, Joel Berger sought
discovery of the city’s past indemnification decisions, arguing “in every case I have been
involved in, and I have consulted with many colleagues in civil rights cases, the city always
wants the jury to be told, Oh you can only award punitives against the officer individually,
not the city.” Pretrial Transcript at 4, Gyasi v. City of New York, No. 05-CV-09453
(S.D.N.Y. June 29, 2006).
231 Scherer v. City of New York, No. 03 Civ. 8445, 2007 WL 2710100, at *1 (S.D.N.Y.
Sept. 7, 2007).
227

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Section 50-k(3) of the General Municipal Law limits the City’s duty
to indemnify its employees by providing that “the duty to indemnify
and save harmless . . . shall not arise where the injury or damage
resulted from intentional wrongdoing or recklessness on the part of
the employee.” Punitive damages, in turn, can only be awarded
where the individual acts intentionally and maliciously, and under
such circumstances the City cannot be liable to indemnify.232

At the jury charge conference, defense counsel reasserted its
objection stating: “The city is never liable for punitive damages.”233
The court did not give the jury any instruction regarding indemnification, and told the jury that, when determining the proper amount of
punitive damages to award, they could “consider the financial ability
of the defendants to pay such damages.”234 At trial, the jury awarded
$500 in compensatory damages and $1000 in punitive damages.235
Nine months after judgment was entered, plaintiff’s counsel moved to
set aside the court’s judgment and order a new trial on the ground that
defense counsel had improperly suggested to the court that the city
would not indemnify a punitive damages award. In his brief, plaintiff’s
counsel relied on recently-produced discovery in another case
showing that the City of New York had indemnified officers it represented in every case in which punitive damages had been awarded
over the prior ten years, including the defendant against whom punitive damages were awarded in Scherer.236
The district court denied plaintiff’s request to set aside the judgment and order a new trial on punitive damages. In its decision, the
court took note of the fact that defense counsel had “selectively
inform[ed]” the court about the applicable municipal code without
“simultaneously inform[ing] the Court of the City’s actual indemnification practice, which is to regularly indemnify individual officers for
both punitive and compensatory damages when those officers are
granted legal representation by the City,” but the court concluded that
this omission “did not rise to the level of outright misrepresentation or
misconduct.”237
Government attorneys may also strategically use the possible
denial of indemnification in an effort to reduce a jury’s verdict after
trial. The plaintiff in Prince George’s County v. Longtin was wrongfully charged with the rape and murder of his wife, incarcerated for
232
233
234
235
236
237

Id.
Id.
Id.
Id.
Id.
Id.

at *2 (quoting N.Y. GEN. MUN. LAW § 50-k (McKinney 2013)).
at
at
at
at

*2-3.
*1.
*3.
*6.

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eight months, and then released when another man was charged with
the crimes.238 Longtin sued the county, its chief of police, and five
members of the criminal investigation division of the police department alleging false imprisonment, false arrest, unconstitutional and
unlawful detention, and excessive force. At trial, the jury awarded the
plaintiff $5.2 million in compensatory damages against the county and
$1.175 million in punitive damages against four defendants.239 The
trial court dismissed the punitive damages verdicts against three of the
defendants, and reduced the punitive damages verdict against a fourth
defendant from $350,000 to $50,000.240 The judge dismissed the punitive damages verdicts against the three defendants because the court
found insufficient evidence of malice, and reduced the punitive damages award against the fourth defendant—even though he agreed with
the jury that the defendant had acted with malice—based on factors
including “the appellant’s ability to pay, the size of the award, and his
belief that deterrent value could still be achieved with a lower
award.”241 The court’s decisions to dismiss and reduce the jury’s punitive damages verdicts were affirmed on appeal.242 Prince George’s
County subsequently paid the entirety of the $50,000 punitive damages judgment that had been upheld against the officer.243
The California Highway Patrol also appears to have used the possibility that its officers would not be indemnified to its benefit. In
Grassilli v. Barr, the plaintiff sued several California Highway Patrol
officers for unlawfully arresting him and otherwise retaliating against
him after complaining about an officer’s conduct.244 At trial, the jury
awarded $500,000 in compensatory damages.245 During the punitive
damages phase of trial, each defendant testified about his limited
financial resources—an indication that the defendants would personally satisfy any punitive damages verdict.246 Defense counsel even suggested, during closing argument at the punitive damages phase of the
trial, that defendants were going to be personally responsible for the
$500,000 in compensatory damages that had already been awarded
238

Prince George’s Cnty. v. Longtin, 988 A.2d 20, 27–30 (Md. Ct. Spec. App. 2010).
Id. at 25.
240 Id. at 26.
241 Id. at 47 n.60.
242 Id. at 48.
243 E-mail from Jamar B. Herry, supra note 158.
244 Grassilli v. Barr, 48 Cal. Rptr. 3d 715, 720–26 (Ct. App. 2006).
245 See id. at 720 (reporting that the jury “found the retaliation caused Grassilli to suffer
$210,000 in economic damages and $290,000 in noneconomic damages”).
246 Id. at 734–35. The court denied plaintiff’s counsel’s request to introduce evidence
that the California Highway Patrol could, as a matter of California law, indemnify the
officers. Id.
239

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against them.247 Ultimately, the jury awarded $3 million in punitive
damages against one officer and approximately $1 million in punitive
damages against a second officer.248
Several months after the trial, defense counsel told plaintiff’s
counsel that the California Highway Patrol had decided to indemnify
the defendants for the punitive damages awards.249 Yet on appeal, the
defendants challenged the punitive damages awards in part because
the judge did not instruct the jury that the officers’ financial condition
was relevant to the jury’s assessment of what punitive damages should
be awarded.250 The appellate court reduced defendants’ punitive damages awards from over $4 million to $55,000, based in part on the conclusion that the “punitive damages awards constitute a
disproportionately large percentage of each defendant’s wealth and
would result in defendants’ financial ruin.”251 The appellate court disregarded evidence introduced by the plaintiff that defense counsel had
stated the California Highway Patrol would indemnify the defendants
for the punitive damages awards, noting that the state legislature
would also have to agree to indemnify the officers and there was no
reason to believe the legislature would do so.252 After the case was
decided on appeal, the parties settled the case during mediation for $2
million; the California Highway Patrol paid the entire settlement.253
I do not know how frequently such tactics are used across the
jurisdictions in my study—this evidence is, admittedly, anecdotal. But,
as the procedural history of Scherer, Longtin, and Grassilli—and my
study data more generally—make clear, even if government attorneys
threaten that they may decline to indemnify an officer before, during,
and after trial, they virtually always satisfy settlements and judgments
in full.
H. Conclusion
Between 2006 and 2011, in forty-four of the seventy largest law
enforcement agencies across the country, officers paid just .02% of the
dollars awarded to plaintiffs in police misconduct suits. In thirty-seven
247 See id. at 735–36 (“In an apparent attempt to suggest the officers were responsible
for paying the compensatory damage award, defense counsel also stated the officers ‘are
going to be punished handsomely with having to write a check . . .’”). Grassilli’s counsel
objected on the basis of misstatement of the law. The court sustained the objection. Id.
248 Id.
249 Id. at 741 n.11.
250 Id. at 736.
251 Id. at 740.
252 Id. at 741 n.11.
253 See E-mail from Kim Hunter, supra note 150 (describing the mediation and
settlement).

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small and mid-sized law enforcement agencies, officers never contributed to settlements or judgments. No officer in any of the eighty-one
jurisdictions satisfied a punitive damages judgment entered against
him. Officers did not contribute to settlements and judgments even
when indemnification was prohibited by statute or policy. And officers
were indemnified even when they were disciplined, terminated, or
prosecuted for their misconduct. Although government attorneys may
strategically employ the threat that officers will be denied indemnification, governments almost always satisfy settlements and judgments
in full.
Although I do not know for certain whether my findings are consistent with the practices in all jurisdictions nationwide, the eighty-one
jurisdictions in my study are broadly representative in size, location,
agency type, indemnification policy, and indemnification procedure.
My findings therefore at least support the presumption that officers
across the country, in departments large and small, are virtually
always indemnified.
III
IMPLICATIONS
In this Part, I consider the extent to which widespread indemnification is inconsistent with civil rights doctrine and practice and the
impact of widespread indemnification on the compensation and deterrence goals of § 1983. I also suggest some adjustments that would
better align civil rights doctrine and practice with evidence of near
certain indemnification.
The prevalence of indemnification is a critical—and previously
unknown—factor relevant to the design of civil rights doctrine. I do
not, however, endorse a set of new rules to govern civil rights damages
actions. There are several additional considerations that should be
taken into account before advancing new doctrinal standards,
including the relative importance of § 1983’s compensation and deterrence goals and the optimal way to achieve these goals given the
various tools available—liability rules, immunity doctrines, rules governing remedies, rules of pleading and proof, and rules governing who
satisfies settlements and judgments.254 Prescriptions should also be
made with the understanding that the compensatory and deterrent
effects of § 1983 claims may vary from region to region, depending on
254 For scholarship that engages with these questions, see Fallon, supra note 16, at 480
(describing his “Equilibration Thesis,” in which “substantive rights, causes of action to
enforce rights, rules of pleading and proof, and immunity doctrines all are flexible and
potentially adjustable components of a package of rights and enforcement mechanisms
that should be viewed, and assessed for desirability, as a whole”).

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the manner in which attorneys litigate—and courts adjudicate—these
claims.255
Any prescriptions should also be made with the understanding
that modifications to one area of the law will likely have secondary
effects.256 If, for example, it became more difficult for a defendant to
win a motion to dismiss on qualified immunity grounds,257 courts
might create more stringent liability rules to reduce the number of
successful claims; Congress might impose damages caps to reduce
payouts; cities might settle fewer claims in an effort to discourage
weak suits or indemnify fewer officers to reduce costs.
In this Article, I do not attempt to resolve these important empirical and normative questions. I do, however, offer suggestions that
would better align doctrine and practice with evidence of widespread
indemnification. These suggestions are guided by the premise that
judicial doctrines governing civil rights damages actions—particularly
those limiting plaintiffs’ entitlement to relief—should not rely on
counterfactual assumptions about officers’ financial exposure in police
misconduct suits. In Part III.A, I consider the implications of widespread indemnification for qualified immunity doctrine, municipal liability standards, and the prohibition of punitive damages awards
against municipalities. In Part III.B, I consider how evidence of widespread indemnification should influence litigation practice. In Part
III.C, I consider how widespread indemnification affects the compensation and deterrence goals of § 1983.
A. Doctrine
1. Qualified Immunity
In a world in which police officers are almost always indemnified
in full, how should we think about the best way to balance competing
interests in compensating plaintiffs when their rights have been violated and preserving “the ability of government officials ‘to serve the
255

See supra notes 134–37 and accompanying text (discussing this possibility).
See Fallon, supra note 16, at 489 (“[I]f courts and other decisionmakers were
deprived of official immunity as an equilibrating device, they would at least sometimes turn
to other tools in an effort to reduce the overall social costs of packages of rights and
surrounding doctrines.”).
257 See, e.g., Hassel, supra note 39, at 136 n.65, 145 n.106 (1999) (studying published
cases and finding that qualified immunity defenses were denied only about 20% of the
time). But see Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its
Consequences for the Individual Liability Model, 62 STAN. L. REV. 809, 843 (2010)
(studying Bivens actions and finding that “the qualified immunity defense is of minimal
importance in regulating Bivens, at least in filed cases”).
256

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public good or to ensure that talented candidates [are] not deterred by
the threat of damages suits from entering public service’ ”?258
Given that law enforcement officers in my study only rarely—and
only in a few jurisdictions—contributed to settlements or judgments,
their median contribution was $2250, and no officer paid more than
$25,000,259 qualified immunity can no longer be justified as a means of
protecting officers from the financial burdens of personal liability.260
Supreme Court doctrine supports the conclusion that there is less—if
any—need for qualified immunity if police officers are not financially
responsible for settlements and judgments entered against them. The
Court has held that private prison guards are not entitled to qualified
immunity in part because private actors’ insurance “increases the likelihood of employee indemnification and to that extent reduces the
employment-discouraging fear of unwarranted liability potential
applicants face.”261 The Court has also held that municipalities are not
entitled to qualified immunity in part because concerns about the
“injustice . . . of subjecting to liability an officer who is required, by
the legal obligations of his position, to exercise discretion”262 are
“simply not implicated when the damages award comes not from the
official’s pocket, but from the public treasury.”263
The logic of these decisions translates convincingly to the police
indemnification context. Just as insurance “reduces the employmentdiscouraging fear of unwarranted liability”264 for those seeking jobs as
private prison guards, near-certain indemnification should reduce the
employment-discouraging fear of unwarranted liability for those
seeking jobs as law enforcement officers. When officers are indemnified and settlements and judgments are paid from the “public treasury,” there is less injustice in “subjecting to liability an officer who is
required, by the legal obligations of his position, to exercise discretion.”265 Moreover, current indemnification practices seem in themselves to achieve the stated goals of qualified immunity doctrine:
258 Richardson v. McKnight, 521 U.S. 399, 408 (1997) (quoting Wyatt v. Cole, 504 U.S.
158, 167 (1992)).
259 See Appendix H (detailing cases where officers were required to contribute to
judgments and settlements).
260 See supra note 45 and accompanying text (describing other scholars’ similar
arguments that evidence of widespread indemnification would undermine current
justifications for qualified immunity).
261 Richardson, 521 U.S. at 411.
262 Owen v. City of Independence, 445 U.S. 622, 654 (1980) (internal quotation marks
omitted) (quoting Scheuer v. Rhodes, 416 U.S. 232, 240 (1974)).
263 Id. at 654.
264 Richardson, 521 U.S. at 411.
265 Owen, 445 U.S. at 654.

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Indemnification allows for compensation of wronged plaintiffs while
lessening the impact of damages actions on officers.266
Indeed, some will contend that widespread indemnification, in
combination with other characteristics of policing and police misconduct litigation, reduces the deterrent effect of lawsuits nearly to zero.
Officers across the country engage in tens of millions of civilian interactions—and use force against civilians hundreds of thousands of
times—each year.267 Yet even people who believe the police have mistreated them rarely take legal action.268 And even when officers are
sued, the suits have limited—if any—negative ramifications for
officers’ employment.269 Moreover, as Daniel Meltzer has observed,
there are limited regulatory and other external influences “reinforcing
the incentive, created by potential tort liability, to avoid harm-causing
activities.”270
266 See David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court:
Judicial Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23, 74
(1989) (“Indemnification . . . protect[s] valid government interests and at the same time . . .
provide[s] for the vindication of constitutional rights through compensation of the victim of
the constitutional tort.”).
A recent study by James Pfander and Jonathan Hunt of the history of indemnification
in the United States indicates that the early Republic also balanced interests in
compensating plaintiffs who had been wronged and avoiding overdeterrence of
government actors through indemnification. Pfander and Hunt found that, beginning in the
late eighteenth century, federal agents who had been sued for wrongdoing began
petitioning Congress for the adoption of private bills of indemnity and, by 1828, the
practice of government indemnification was “settled and routine.” James E. Pfander &
Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government
Accountability in the Early Republic, 85 N.Y.U. L. REV. 1862, 1867–68 (2010).
Indemnification through these private bills was relied upon to “strik[e] the right balance
between the compensation of victims and the protection of officers who acted in good
faith.” Id. at 1925. Indemnification was the sole means of striking this balance: As Pfander
and Hunt explain, “the courts—state and federal—did not take responsibility for adjusting
the incentives of officers or for protecting them from the burdens of litigation and personal
liability. These were matters for Congress to adjust through indemnification and other
modes of calibrating official zeal.” Id. at 1924.
267 See CHRISTINE EITH & MATTHEW R. DUROSE, BUREAU OF JUSTICE STATISTICS, U.S.
DEP’T OF JUSTICE, CONTACTS BETWEEN POLICE AND THE PUBLIC, 2008, at 1 (2011)
(reporting that an estimated forty million people had contact with police in 2008); id. at 11
(reporting that approximately 776,000 people “experienced force or the threat of force by
police at least once in 2008”).
268 See Joanna C. Schwartz, What Police Learn from Lawsuits, 33 CARDOZO L. REV.
841, 863–64 (2012) (citing a Bureau of Justice statistics report in support of the conclusion
that people who believe they have been mistreated by the police sue only approximately
1% of the time, and offering reasons why this might be the case).
269 See Schwartz, supra note 18, at 1076–77 (describing evidence that police misconduct
suits have limited negative effects on officers’ employment).
270 Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials:
Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247, 286 (1988).

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Others will argue that, despite indemnification, police officers are
still in danger of being overdeterred by the threat of liability. An
officer who has never been sued may overestimate the likelihood that
he will be held financially responsible for a settlement or judgment.271
He may overestimate the likelihood that he will have to pay an
attorney to defend him in a civil suit.272 He may fear that being sued
will make it more difficult to get a loan or sell his home.273 He may
fear negative employment ramifications associated with being named
a defendant.274 And he may fear the harassment and distraction associated with document requests, depositions, and court appearances.275
An officer who has previously been sued is extremely unlikely to
have borne the costs of an attorney or contributed to a settlement or
judgment, but may still fear future financial liability—especially if he
is employed by a city that waits until the end of litigation to decide
whether to indemnify or withholds indemnification decisions for some
tactical advantage.276 Even if an officer believes he will be indemnified, he may not want his conduct to impose costs on taxpayers or his
employer.277 He may fear that he will be disciplined or denied promotion if he is named in multiple suits. He may fear having to participate

271 See Schwartz, supra note 18, at 1026–27 (observing that boundedly rational officers
cannot engage in the rational cost-benefit analyses assumed by standard economic models
of deterrence).
272 See supra notes 132–33 and accompanying text (describing the frequency with which
law enforcement officers are provided with defense counsel free of charge).
273 See, e.g., Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1675 n.389
(2003) (“For correctional officers, probably the most significant consequence of being sued
is the need to give explanations to would-be creditors.” (citation omitted)); H. Allen Black,
Note, Balance, Band-Aid, or Tourniquet: The Illusion of Qualified Immunity for Federal
Officials, 32 WM. & MARY L. REV. 733, 752 (1991) (arguing that being named a defendant
may “hamper defendants’ efforts to obtain loans” and “keep defendants from disposing of
certain real property”).
274 See Schwartz, supra note 18, at 1034 n.58 (describing concerns about the effects of
lawsuits on officers’ jobs). Note, however, that my previous study of the role of lawsuit
information in law enforcement decisionmaking makes clear that police departments know
little about the suits brought against their officers. See id. at 1076 (finding that, in many
jurisdictions, “[u]nless allegations in a suit are separately brought to the attention of
policymakers, the conduct will not be investigated, and the involved officers will not be
disciplined, counseled, or retrained following the incident”).
275 See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (observing that qualified immunity
protects officers from the “harassment” and “distraction” of suit).
276 See Armacost, supra note 45, at 588 n.17 (observing that when indemnification
decisions are made at the conclusion of the litigation, “officials face significant uncertainty
about their individual situations”).
277 See Anderson v. Creighton, 483 U.S. 635, 641 n.3 (1987) (raising the possibility that
conscientious officials are concerned with imposing liability on their employers).

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in future depositions or trials. And each of these concerns may “erode
[officers’] necessary confidence and willingness to act.”278
A critical question, then, in determining whether qualified immunity is necessary to protect against officer overdeterrence is the extent
to which officers’ behavior is influenced by the threat of being sued
despite the near certainty that they will be indemnified. John Jeffries
commented, regarding his conversations with police officer trainees at
the FBI, that he was “struck by [officers’] aversion to being sued, even
when they were confident that no judgment would be satisfied from
their personal resources.”279 Other studies have found law enforcement officers and administrators “only worry moderately about workrelated lawsuits filed by citizens.”280 And even officers who worry
about being sued may not change their behavior as a result.
Studies have found that “the prospect of civil liability has a deterrent effect in the abstract survey environment but that it does not
have a major impact on field practices.”281 One study, which involved
both surveys and the observation of thousands of encounters between
officers and members of the public, concluded that officers who “initiated aggressive behaviors . . . do not seem to be deterred to any substantial extent by concerns about liability” and that, contrary to
assumptions about lawsuits’ deterrent effects, officers who had previ278 Brief for National Association of Police Organizations and National Law
Enforcement Officers’ Rights Center as Amicus Curiae Supporting Petitioner at 5, Saucier
v. Katz, 533 U.S. 194 (2001) (No. 99-1977).
279 Jeffries, supra note 12, at 51 n.17.
280 Carol A. Archbold & Edward R. Maguire, Studying Civil Suits Against the Police: A
Serendipitous Finding of Sample Selection Bias, 5 POLICE Q. 222, 226 (2002) (describing
studies of the levels of “litigaphobia” experienced by police officers and chiefs).
281 VICTOR E. KAPPELER, CRITICAL ISSUES IN POLICE CIVIL LIABILITY 7 (4th ed. 2006)
(citing several studies); see also Arthur H. Garrison, Law Enforcement Civil Liability
Under Federal Law and Attitudes on Civil Liability: A Survey of University, Municipal and
State Police Officers, 18 POLICE STUD. INT’L REV. POLICE DEV. 19, 26 (1995) (finding that
62% of a sample of fifty officers from state, municipal, and university law enforcement
agencies in Pennsylvania believed that civil suits deter police officers, but 87% of state
police officers surveyed, 95% of municipal police officers surveyed, and 100% of university
police officers surveyed did not consider the threat of a lawsuit among their “top ten
thoughts” when stopping a vehicle or engaging in a personal interaction); Daniel E. Hall et
al., Suing Cops and Corrections Officers: Officer Attitudes and Experiences About Civil
Liability, 26 POLICING: INT’L J. POLICE STRATEGIES & MGMT. 529, 545 (2003) (surveying
sheriff’s deputies, corrections officers, and municipal police officers in a southern state and
concluding that “most public safety officers are not impacted on a day-to-day basis by the
threat of civil liability”); Tom “Tad” Hughes, Police Officers and Civil Liability: “The Ties
that Bind”?, 24 POLICING: INT’L J. POLICE STRATEGIES & MGMT. 240, 253 (2001)
(reporting that a survey of Cincinnati police officers revealed that most officers “think civil
liability impedes effective law enforcement” but that most do not “consider liability
concerns when stopping a citizen”).

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ously been sued were more aggressive than officers who had not.282
Some may argue that these studies show qualified immunity to be performing its intended function—lessening the impact of the threat of
liability on officer behavior. But if officers’ mindsets regarding the
prospect of being sued can be attributed to qualified immunity, the
doctrine is overperforming: Although qualified immunity is intended
to protect against overdeterrence, available studies indicate that
officers’ behavior is currently not influenced to any substantial extent
by the threat of litigation.
Evidence that police officers almost never financially contribute
to settlements and judgments, evidence that lawsuits have little negative impact on police officers’ employment, and evidence that officers’
behavior is not influenced to any substantial extent by the threat of
being sued all undermine the Supreme Court’s current rationales for
qualified immunity.283 Even if one believes that police officers need
some manner of protection against the ill effects of litigation, there is
no doctrinal, empirical, or logical basis for current stringent qualified
immunity standards, which are designed to “provide[ ] ample protection to all but the plainly incompetent or those who knowingly violate
the law.”284 Qualified immunity should be eliminated or restricted to
comport with this evidence unless and until an alternative, empirically
grounded justification can be offered for the defense.285
2. Municipal Liability
Municipal liability doctrine is premised on the notion that there is
no respondeat superior liability—a municipality can only be held
liable for a constitutional violation if its policies or customs caused
that violation. In thousands of cases, courts have struggled to identify
what municipal conduct satisfies the “policy and custom” require282 See Kenneth J. Novak, Brad W. Smith & James Frank, Strange Bedfellows: Civil
Liability and Aggressive Policing, 26 POLICING: INT’L J. POLICE STRATEGIES & MGMT. 352,
360, 363 (2003) (surveying and observing Cincinnati police officers).
283 For a description of the justifications for qualified immunity doctrine, see supra Part
I.A.1.
284 Malley v. Briggs, 475 U.S. 335, 341 (1986).
285 Qualified immunity could be justified on other grounds. One alternate justification
would be to limit payments by governments (and, by implication, their taxpayers). See, e.g.,
Lawrence Rosenthal, A Theory of Governmental Damages Liability: Torts, Constitutional
Torts, and Takings, 9 U. PA. J. CONST. L. 797, 856 (2007) (noting that widespread
indemnification undermines “the stated justification for qualified immunity,” but “[w]hen
qualified immunity is viewed from the standpoint of a public employer—the party that
bears the economic burden of liability—this doctrine has a compelling justification”). This
Article does not attempt to guess whether the Supreme Court would adjust its justification
for qualified immunity in this manner, nor does it assess the merits of such a justification
were it offered.

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ments.286 Scores of law review articles have puzzled over the limits of
these standards and challenged their logic.287 Yet municipalities virtually always satisfy officers’ settlements and judgments, amounting to
de facto respondeat superior liability. Complex and taxing municipal
liability standards are, therefore, virtually irrelevant in determining
who writes the check.
This is not to say that Monell doctrine288 is irrelevant in determining whether a check is written or how much that check is for. For
plaintiffs, a successful Monell claim can be an antidote to the constraints of qualified immunity. Because municipalities cannot assert a
qualified immunity defense, plaintiffs can prevail on a Monell claim
even if the underlying constitutional rights were not clearly established, so long as they can establish that a municipal policy or
custom—or a failure to properly hire, train, or supervise its
employees—caused the constitutional violation.289 Moreover, Monell
claims can be used to “clearly establish” the law and prevent future
claims against individual officers from being dismissed on qualified
immunity grounds.290
Monell claims may have other benefits for plaintiffs. Naming the
government entity can have what Myriam Gilles has referred to as a
“ ‘fault-fixing’ function, localizing culpability in the municipality itself,
and forcing municipal policymakers to consider reformative measures.”291 Juries may award higher damages against a municipality,
believing (falsely) that an individual officer might have to pay a judgment out of his own pocket.292 Monell claims can also lead to broader
discovery, which has several benefits for plaintiffs: Broad discovery
286 See Fisk & Chemerinsky, supra note 56, at 791 (describing municipal liability
standards as a “doctrinal disarray involving literally thousands of decisions trying to define
when cities can be held liable”).
287 See supra notes 54–56 and accompanying text (describing some of these scholarly
critiques).
288 “Monell doctrine” refers to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978),
which held that cities could be held directly liable (under limited circumstances) but not
vicariously liable for § 1983 claims brought against their employees, and subsequent cases
interpreting Monell’s scope. For a more detailed description of the doctrine, see supra Part
I.A.2.
289 For a discussion of the limitations of this approach, see infra notes 298–99 and
accompanying text.
290 See infra notes 32–34 and accompanying text (describing the plaintiff’s need to show
a violation of “clearly established law” to defeat a defendant’s motion to dismiss on
qualified immunity grounds).
291 Gilles, supra note 74, at 861.
292 See, e.g., Jack M. Beermann, Municipal Responsibility for Constitutional Torts, 48
DEPAUL L. REV. 627, 667 (1999) (“Indemnification is a poor substitute for vicarious
liability because . . . to a jury it may still appear that any damages may be paid out of the
employee’s own pocket.”).

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can create settlement pressure, reveal information about other claims,
and unearth information about the ways in which the municipality
functions that can be used in other lawsuits or in nonlitigation advocacy efforts.
Monell claims likely have even greater impact on the litigation of
civil rights damages actions when officer indemnification is not a foregone conclusion. Some jurisdictions, for example, do not directly
indemnify their officers but instead require plaintiffs to dismiss individual defendants before settling on behalf of the city.293 In such a
jurisdiction, the plaintiff must allege a Monell claim so that the city is
a named party and can satisfy a subsequent settlement. In a jurisdiction like El Paso that has a policy of not indemnifying its officers,294
naming the municipality—and defeating defendants’ motion to dismiss or for summary judgment—may create leverage for a larger settlement. And for a defendant employed by El Paso, getting the Monell
claim dismissed may convince the plaintiff to drop her claim or accept
a greatly reduced settlement. For all of these reasons, Monell doctrine
plays a significant role in the litigation of civil rights damages actions
even if it does not determine who pays prevailing plaintiffs.
Reasonable people could disagree about whether to replace
Monell doctrine with vicarious liability in a world with nearly universal indemnification. Were qualified immunity eliminated or significantly restricted, I would be largely agnostic about which standard
should apply. To be sure, Monell’s framework for municipal liability is
unnecessary and formalistic because cities are, ultimately, footing the
bills in these cases. Replacing Monell with vicarious liability would
align doctrine with actual practice, eliminate an exceedingly complex
body of case law, and streamline the litigation of these claims.295 This
adjustment would also be, many believe, consistent with the language
and legislative history of § 1983.296 On the other hand, given widespread indemnification, there would arguably be a less urgent need to
replace Monell’s municipal liability framework with respondeat superior liability. Plaintiffs and defendants could continue to use Monell
claims strategically during litigation—for settlement leverage, fault
fixing, and information gathering—while dispensing with the illusion
293 See supra note 136 and accompanying text (describing jurisdictions that enter
settlements conditioned upon the individual officer being dismissed from the case).
294 See supra notes 145–48 and accompanying text (describing El Paso’s policy of
denying officers indemnification as a formal matter, but nevertheless paying settlements on
officers’ behalf).
295 See Fisk & Chemerinsky, supra note 56, at 791 (“A clear and simple vicarious
liability rule would be preferable to the current doctrinal disarray . . . .”).
296 See supra note 55 and accompanying text (describing the view that the language and
legislative history of § 1983 is not inconsistent with respondeat superior liability).

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that the success of a plaintiff’s Monell claim determines whether she
will recover from the municipality.
The choice between the two standards is starker if current qualified immunity standards endure. Vicarious liability would eliminate
qualified immunity as a barrier to relief, assuming that governments
would remain unable to assert the qualified immunity defense: Even if
an officer violated rights that were not clearly established, and therefore could not be held personally liable due to qualified immunity, the
municipality would remain vicariously liable to the plaintiff for its
employee’s wrongs.297 Under Monell, in contrast, some plaintiffs
whose constitutional rights have been violated cannot recover. Plaintiffs can bring Monell claims to avoid having their case dismissed on
qualified immunity grounds.298 But Monell is a faulty workaround: A
plaintiff whose constitutional rights were violated can be denied relief
if the rights were not clearly established (so the defendant officer is
entitled to dismissal on qualified immunity grounds) and the municipality did not engage in an unconstitutional policy or custom or fail to
hire, train, or supervise its employees in a way that led to the violation
(leading to dismissal of the Monell claim). Indeed, some courts have
held that a finding that the law was not clearly established in the qualified immunity context can defeat some types of Monell claims because
the “plaintiff cannot show that the City was deliberately indifferent to
rights that were not clearly established.”299
I have argued that evidence of near universal indemnification and
the lack of evidence that officers’ decisionmaking is substantially
impacted by the threat of litigation undermine the Supreme Court’s

297 See Fisk & Chemerinsky, supra note 56, at 796 (advocating for vicarious liability in
§ 1983 cases to circumvent qualified immunity).
298 See, e.g., Askins v. Doe, 727 F.3d 248, 254 (2d Cir. 2013) (holding that the plaintiff
can proceed on his Monell claim even if claims against individual defendants have been
dismissed on qualified immunity grounds, and reasoning that qualified immunity
protections have “no bearing on the liability of municipalities”); Mason v. Stock, 955 F.
Supp. 1293, 1304 n.9 (D. Kan. 1997) (“[W]hen qualified immunity is predicated on the
basis that the law is not clearly established, the corresponding claim against a municipality
may proceed.”).
299 Watson v. Sexton, 755 F. Supp. 583, 588 (S.D.N.Y. 1991); see also, e.g., Szabla v. City
of Brooklyn Park, 486 F.3d 385, 394 (8th Cir. 2007) (en banc) (“[T]he lack of clarity in the
law precludes a finding that the municipality had an unconstitutional policy at all, because
its policymakers cannot properly be said to have exhibited a policy of deliberate
indifference to constitutional rights that were not clearly established.”). But see Askins, 727
F.3d at 254 (concluding that municipal liability claims must be allowed to proceed despite a
finding that the law was not clearly established, because to do otherwise would “effectively
extend the defense of qualified immunity to municipalities, contravening the Supreme
Court’s holding in Owen”).

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justifications for current stringent qualified immunity standards.300 If
qualified immunity doctrine is not modified, plaintiffs whose rights
have been violated will continue to have their claims against individual officers dismissed on qualified immunity grounds—despite the
lack of evidence supporting current justifications for the doctrine—
and Monell claims will not always provide plaintiffs an alternate
avenue for relief. If the qualified immunity defense is not significantly
restricted or eliminated, replacing Monell with vicarious liability is
one means of limiting the effects of qualified immunity on plaintiffs’
claims against individual officers and the municipalities that employ
them.
3. Punitive Damages
The prohibition of punitive damages against municipalities in
§ 1983 actions is also based on an assumption—now proven false—
that law enforcement officers personally satisfy punitive damages
judgments entered against them.301 The Supreme Court has held that
punitive damages should not be awarded against municipalities in
§ 1983 cases because there is no reason to believe that “municipal officials, including those at the policymaking level, would be deterred
from wrongdoing by the knowledge that large punitive awards could
be assessed based on the wealth of the municipality.”302 The Court
also prohibited punitive damages awards against municipalities
because it would be unfair to impose punitive damages judgments on
taxpayers.303 Yet, state and local governments have repeatedly used
taxpayer dollars to satisfy punitive damages judgments awarded
against law enforcement officers in § 1983 cases.
There are at least three ways of squaring punitive damages doctrine with evidence of widespread indemnification. Municipalities
could be prohibited from indemnifying punitive damages awards,
courts could allow juries to award punitive damages against munici300 See supra Part III.A.1 (describing the effects of widespread indemnification on
justifications for qualified immunity).
301 To the extent that state statutes prohibiting or restricting punitive damages awards
against public entities in non–civil rights cases (described supra note 61) are based on the
assumptions underlying City of Newport (discussed supra notes 61–65 and accompanying
text), such statutes should also be reconsidered. These statutes may, however, have little
practical effect in law enforcement litigation: I am aware of only one punitive damages
award against individual officers in a non–civil rights case in the eighty-one jurisdictions in
my study during the six-year study period. See supra note 138 (describing the non–civil
rights case in which punitive damages were awarded).
302 City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 268 (1981).
303 See id. at 267 (“Neither reason nor justice suggests that such retribution should be
visited upon the shoulders of blameless or unknowing taxpayers.”).

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palities, or courts could prohibit juries from awarding punitive damages against law enforcement officers.
Prohibiting municipalities from indemnifying punitive damages
awarded against individual officers in § 1983 cases makes sense in
theory. In the private context, insuring for punitive damages is generally considered against public policy because insurance undermines
punitive damages’ punishment and deterrence goals.304 Indemnifying
government employees for punitive damages awards frustrates these
same purposes and imposes costs on taxpayers. Yet, there is reason to
believe that city, county, and state governments will not comply with a
rule prohibiting indemnification of punitive damages. Although several jurisdictions in my study already prohibit indemnification of punitive damages, government attorneys have sidestepped the prohibitions
by entering into postjudgment settlement agreements or satisfying
judgments in violation of governing law.305
The other two options—prohibiting § 1983 punitive damages
awards against law enforcement officers and allowing § 1983 punitive
damages awards against municipalities—could each align doctrine and
indemnification practice. Prohibiting punitive damages awards against
law enforcement officers in § 1983 cases would further the Court’s
stated interest in protecting blameless and unknowing taxpayers from
satisfying punitive damages judgments. Allowing punitive damages
awards against municipalities in § 1983 cases would shift doctrine in
recognition of the fact that taxpayers are already paying punitive damages judgments awarded against their officers.
Each choice would also significantly impact the role of punitive
damages awards in civil rights cases. Prohibiting juries from awarding
punitive damages against officers would eliminate any chance for
punitive damages to serve their intended role as a source of punishment and deterrence in § 1983 cases.306 Allowing punitive damages
awards against municipalities would presumably increase the fre304 See Schwartz, supra note 72, at 1220–21 (describing insuring punitive damages
awards in private law and indemnifying punitive damages awards in § 1983 cases as against
public policy). But see ELLIOTT M. KROLL & JAMES M. WESTERLIND, ARENT FOX LLP,
ARENT FOX LLP SURVEY OF DAMAGE LAWS OF THE 50 STATES INCLUDING THE DISTRICT
OF COLUMBIA AND PUERTO RICO (2012) (reporting that punitive damages awards are
insurable in some states).
305 See supra notes 158–68 and accompanying text (describing these practices).
306 See David G. Owen, A Punitive Damages Overview: Functions, Problems and
Reform, 39 VILL. L. REV. 363, 374–80 (1994) (describing the functions of punitive
damages); Joseph A. Seiner, Punitive Damages, Due Process, and Employment
Discrimination, 97 IOWA L. REV. 473, 485–86 (2012) (describing the deterrence,
punishment, education, and compensation goals of punitive damages).

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quency and magnitude of awards307 and could, some have argued,
increase lawsuits’ deterrent effect.308 Yet, because I am skeptical that
municipalities and police departments currently pay much attention to
lawsuit payouts,309 I am not convinced that the behavior of today’s
municipalities would be much influenced by punitive damages awards
entered against them.
The optimal role of punitive damages in civil rights litigation—
and the effects of these possible doctrinal modifications—is beyond
the scope of this Article. Assuming, however, that doctrine should not
rest on empirically unsupported assumptions about how the world
works, reform is necessary to align punitive damages doctrine and
indemnification practices.
B. Practice
Evidence of widespread indemnification also has implications for
the litigation of civil rights damages actions. Anecdotal evidence suggests that government attorneys may use the possibility that officers
will not be indemnified to their advantage during settlement negotiations, trial, and post-trial proceedings. Civil rights litigation practice—
like civil rights doctrine—should not rely on flawed assumptions
about the likelihood of indemnification. Accordingly, plaintiffs should
be allowed to counter the strategic use of possible indemnification
denials with evidence of widespread indemnification.
For example, assuming punitive damages doctrine does not
change,310 evidence of indemnification practices should play a larger
role in trial and post-trial decisions in ways that would prevent government attorneys from misleading judges and jurors about who will
satisfy punitive damages awards.311 Current law prevents plaintiffs’
307 Cf. Larez v. Holcomb, 16 F.3d 1513, 1525 (9th Cir. 1994) (Pregerson, J., concurring in
part and dissenting in part) (observing that juries might impose punitive damages against
municipalities less frequently, knowing that taxpayers will be satisfying the judgments).
308 See, e.g., Ciraolo v. City of New York, 216 F.3d 236, 247 & n.9, 248 (2d Cir. 2000)
(Calabresi, J., concurring) (arguing that punitive damages should be awarded against
municipalities as a means of “remedying underdeterrence” and suggesting that
extracompensatory damages against municipalities be paid into a “specific fund whose
purpose, at least in theory, would be to attenuate the harm borne by those victims who did
not receive compensatory damages”); Gilles, supra note 74, at 873 (“[T]he availability of
punitive damages in Monell claims will place unconstitutional policies and customs
squarely on the radar screens of responsible officials.”).
309 For a discussion of the current effect of litigation costs on governments, see infra
Part III.C.
310 But see supra Part III.A.3 for suggestions about ways to shift punitive damages
doctrine in light of evidence of widespread indemnification.
311 I am not addressing the question of whether juries should be informed that officers
are indemnified for compensatory damages awards, although this is also a subject of
debate. See Schwartz, supra note 72, at 1212 (“Although it is a close question, the jury

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attorneys from unilaterally introducing evidence of governments’
indemnification practices.312 Yet courts have also concluded that if a
defendant seeks to introduce information about his financial
resources—as though to suggest that he will be responsible for the
judgment—the door is opened to discovery and possible admission at
trial of evidence about indemnification practices.313 As Judge Posner
explained in a Seventh Circuit decision: “The defendant should not be
allowed to plead poverty if his employer or an insurance company is
going to pick up the tab.”314
At each stage of litigation, courts have allowed evidence of
indemnification to counter evidence suggesting that an officer will
personally satisfy a punitive damages judgment. In one civil rights
action brought against a New York City police officer, the City
objected to the plaintiff’s request for discovery about the City’s prior
decisions to indemnify punitive damages judgments. The court found
that discovery about indemnification practices was relevant to
whether the defendant could testify about his finances during the
punitive damages phase of trial. As Judge Shira A. Scheindlin
explained:
should know about indemnification of compensatory damages [in civil rights actions] so
that it is not misled into believing that the officer will satisfy a monetary judgment out of
personal finances.”). But see id. at 1229–30 (“The weight of authority in the federal courts
of appeals treats government indemnification of employee–§ 1983 liability [for
compensatory damages] in the same manner as private liability insurance, and thus
generally excludes this information from the jury.”).
312 See id. at 1242 (“[T]he great weight of circuit court authority supports the conclusion
that, normally, the jury should not be informed about governmental indemnification of an
official’s personal monetary liability for both compensatory and punitive damages.”); see
also id. at 1237–42 (describing cases preventing evidence of indemnification); cf. Perrin v.
Anderson, 784 F.2d 1040, 1047–48 (10th Cir. 1986) (finding no error when defense counsel
told the jury that an officer would be personally responsible for any punitive damages
award). In some jurisdictions, including California, the fact that a public entity might
indemnify its employees for punitive damages cannot be disclosed during trial as a matter
of statute; such a disclosure, if it occurs, is grounds for a mistrial. CAL. GOV’T CODE
§ 825(b)(3) (West 2012). The Ninth Circuit stated that, even without relying on CAL.
GOV’T CODE § 825(b)(3), federal common law supports the conclusion that it is error to
inform a jury that the government may indemnify an official for any punitive damages
award. Larez v. Holcomb, 16 F.3d 1513, 1521 n.8 (9th Cir. 1994).
313 For scholarship in agreement with this practice, see Gerald Reading Powell &
Cynthia A. Leiferman, Results Most Embarrassing: Discovery and Admissibility of Net
Worth of the Defendant, 40 BAYLOR L. REV. 527, 533 (1988) (“On pure relevance
grounds . . . if the court admits net worth evidence in a case in which liability coverage
exists, then the court should also admit evidence of liability insurance coverage.”);
Schwartz, supra note 72, at 1247–48 (“If a defendant introduces evidence of personal
financial circumstances in order to persuade the jury to award low punitive damages, when
in fact the defendant’s punitive damages will be indemnified, failure to inform the jury
about indemnification seriously misleads the jury.”).
314 Kemezy v. Peters, 79 F.3d 33, 37 (7th Cir. 1996).

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If this case goes to trial, if there is a liability finding, if the jury then
gets punitive damages as an issue, I am not going to mislead them,
thinking that it comes out of the poor officer’s pocket and have the
poor officer say, I have a wife and three kids and a mortgage, I can
barely afford the payments, and I earn only [$]38,000, whatever. I
am not going to have all of that. If in fact the reality is that in the
last 100 punitive damages awards the city has always indemnified, I
am not going to have the testimony at all about his wife, kids, and
poor salary, because it’s all irrelevant.315

Courts have also found that ordinarily inadmissible evidence
about a jurisdiction’s indemnification practices may become admissible if the defense introduces testimony at trial about the officer’s
finances.316 And the Second Circuit has held that a fact finder “can
properly consider the existence of [an indemnification] agreement as
obviating the need to determine whether a defendant’s limited financial resources justifies some reduction in the amount that would otherwise be awarded.”317
For plaintiffs attempting to counter defendants’ testimony suggesting they will be personally responsible for punitive damages
awards, the most probative evidence will concern indemnification outcomes, not indemnification policies. Based on their policies, one could
confidently conclude that officers would never be indemnified for
punitive damages awards in Las Vegas, New York, Prince George’s
County, or Oklahoma City. Yet these jurisdictions have satisfied punitive damages judgments entered against their officers and settled cases
after a punitive damages judgment without a financial contribution by
the officer.318 Because indemnification policies offer a skewed portrait
of indemnification practices, key to the success of this approach is
relying on—and continuing to unearth—systematic evidence about
indemnification outcomes.

315 Transcript of Pretrial Conference at 6, Gyasi v. City of New York, No. 05-CV-9453
(S.D.N.Y. June 29, 2006) (on file with the New York University Law Review).
316 See, e.g., Obrycka v. City of Chicago, No. 07C2372, 2012 WL 4060293, at *2 (N.D. Ill.
Sept. 14, 2012) (holding that plaintiffs cannot introduce information about Chicago’s
decision to indemnify the defendant police officer, but observing that “[i]f [d]efendants
open the door by presenting evidence or argument of [the officer’s] financial condition,”
evidence of indemnification may be allowed). For similar holdings, see, for example,
Cooper v. Dailey, No. 07C2144, 2012 WL 1748150, at *6 (N.D. Ill. May 16, 2012); Engman
v. City of Ontario, No. EDCV 10-284 CAS, 2011 WL 2463178, at *10 (C.D. Cal. June 20,
2011); Schaefer v. Ready, 3 P.3d 56, 59 (Idaho Ct. App. 2000).
317 Mathie v. Fries, 121 F.3d 808, 816 (2d Cir. 1997).
318 For further discussion of the indemnification of punitive damages judgments in these
jurisdictions, see supra Part II.D.2.

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C. Compensation and Deterrence
A final question concerns the implications of current indemnification practices for the compensation and deterrence goals of § 1983.
Civil rights damages actions are “designed to provide compensation
for injuries arising from the violation of legal duties, and thereby, of
course, to deter future violations.”319 How does widespread indemnification of officers sued for civil rights violations affect the extent to
which these goals are being met?
Widespread indemnification facilitates § 1983’s goal of compensating plaintiffs after a settlement or judgment in their favor. If
officers were not indemnified, they would be personally responsible
for satisfying six- and seven-figure settlements and judgments from
their relatively modest annual salaries. Because many law enforcement officers could not pay the settlements and judgments entered
against them, many plaintiffs would go uncompensated even after a
fact finder concluded that their rights were violated. Indemnification
ensures that judgments and settlements will be satisfied from governments’ deep pockets.320 This fact may explain why plaintiffs have vigorously contested governments’ rare decisions to refuse officers’
requests for indemnification.321 This fact may also explain why some
plaintiffs agree to dismiss punitive damages judgments in exchange for
postjudgment settlements satisfied by the government entity; although
a postjudgment settlement may not achieve punitive damages’ deterrence function, it will ensure that the award is paid.322
319 City of Monterey v. Del Monte Dunes, 526 U.S. 687, 727 (1999) (Scalia, J.,
concurring) (citation omitted).
320 For scholarship supportive of vicarious liability for this reason, see, for example,
SCHUCK, supra note 13, at 101 (“Governmental liability would clearly maximize the
probability that officially inflicted harms would be adequately compensated.”).
321 See, e.g., supra notes 203–08 and accompanying text (describing the Maimaron case,
in which the plaintiff and officer defendant jointly sued the Commonwealth of
Massachusetts so that it would indemnify the officer); supra notes 217–20 and
accompanying text (describing the Jimenez case, in which the plaintiff sued Los Angeles
County after it refused to satisfy a punitive damages judgment entered against one of its
officers). I am unaware of plaintiffs’ attorneys contesting more limited contributions to
settlements, as in the thirty-seven to thirty-nine cases described in Part II.F.
322 See supra notes 160–68 and accompanying text (describing instances in which
plaintiffs agreed to settlements paid entirely by the government entity after juries awarded
punitive damages against individual officers). Additional research is necessary to fully
understand the impact of indemnification policies and practices on litigant behavior in
police misconduct cases. For illuminating research about how the source of settlement and
judgment dollars influences litigant behavior in other contexts, see Tom Baker, Blood
Money, New Money, and the Moral Economy of Tort Law in Action, 35 LAW & SOC’Y
REV. 275, 284–85 (2001) (studying plaintiff attorneys in Connecticut and finding that
plaintiffs in “ordinary negligence case[s]—such as a routine auto accident, a doctor who
made an understandable mistake, or a ‘slip and fall’”—prefer to recover against insurance

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Although indemnification furthers § 1983’s compensation goals,
it frustrates § 1983’s deterrence goals by limiting the impact of compensatory and punitive damages awards on individual officers. In most
jurisdictions, officers can have no reasonable expectation that their
misconduct will lead to financial sanctions.323 Lawsuits appear infrequently to have negative ramifications for officers’ employment.324
And available evidence suggests that the threat of being sued does not
significantly influence officer behavior.325
Yet the obvious alternative—eliminating indemnification and
imposing the full force of financial liability for civil rights damages
actions on individual officers—also seems to be the wrong tool for
deterrence. Even with the protections of qualified immunity, officers
in my study would have been personally responsible for over $730 million in payouts over six years. In New York, the median payout for
plaintiffs during my six-year study period was $20,000, a significant
but payable sum given officers’ salaries.326 But in twenty-six civil
rights damages cases resolved in New York between 2006 and 2011,
plaintiffs received over $1 million, and plaintiffs’ recoveries in another
595 cases were in the six figures. Given the inevitable inaccuracies of
litigation outcomes,327 an officer could be bankrupted if he committed
a relatively minor error that resulted in significant injuries to the
plaintiff.328 Although widespread indemnification likely lessens the
companies than to seek money directly from defendants, but that plaintiffs seek “blood
money” against defendants who have engaged in what is considered moral wrongdoing).
323 Boundedly rational officers could still, of course, have unreasonable expectations
that they will be held financially responsible for settlements and judgments. See supra
notes 271–78 and accompanying text (describing officers’ possible concerns).
324 See Schwartz, supra note 18, at 1076–77 (describing evidence that police misconduct
suits do not have significant negative effects on officers’ employment).
325 See supra notes 280–82 and accompanying text (describing studies of lawsuits’
deterrent effects on officers).
326 See Benefits and Salary Overview, NYPD, http://www.nypdrecruit.com/benefits-sala
ry/overview (last visited Feb. 5, 2014) (reporting that officer candidates earn almost
$45,000 in total pay in the police academy and over $76,000 per year in base pay after five
and a half years as officers).
327 See Schwartz, supra note 268, at 880–81 (describing many ways in which litigation
outcomes may not reflect the strength or merits of plaintiffs’ claims).
328 See Emery & Maazel, supra note 72, at 592 (“If our society is to encourage public
service and attract qualified public servants, public officials cannot face financial ruin for
every careless mistake that causes someone damage. Society must bear that cost.”). On the
other hand, officers who are judgment proof—like the Los Angeles County Sheriff’s
Department deputy who was in prison when he was found liable for assaulting an inmate at
the Los Angeles County Jail—are unlikely to be much deterred by the imposition of
personal liability. For a description of the case against the imprisoned Los Angeles County
Sheriff’s Department’s deputy, see supra notes 217–20. See also Steven Shavell, The
Judgment Proof Problem, 6 INT’L REV. L. & ECON. 45, 54 (1986) (observing that one
problem created by injurers’ lack of assets is that injurers may tend “to engage excessively
in risky activities and to fail to exercise adequate care when so doing”).

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deterrent effect of lawsuits on individual officers, it does spread risk in
a way that makes some sense.329
The practices in place in New York City and Cleveland offer a
promising middle ground. In New York and Cleveland, officers paid
between $250 and $25,000 in thirty-six cases during the study
period.330 One might believe that the financial sanctions on officers
should be higher (or lower), or that they should be imposed more (or
less) frequently. But the general idea—imposing financial sanctions
on officers as part of settlements and judgments—could, in theory,
accommodate § 1983’s somewhat conflicting compensation and deterrence goals. Requiring officers to pay thousands, or even tens of
thousands, of dollars (calculated, ideally, based on their culpability
and resources)331 could punish the involved officers and send a message to others.332 Yet, because the government would pay the bulk of
any award, wronged plaintiffs would still be compensated for the violations of their constitutional rights. Refusing to indemnify officers’
punitive damages awards is another way to punish officers found to
have engaged in reckless or malicious conduct.333 This adjustment
would not, however, punish officer wrongdoing in the vast majority of
cases that are resolved before trial.
The deterrence goals of § 1983 could also be met, despite widespread indemnification, if the costs of satisfying settlements and judgments placed pressure on government entities to implement systemic

329 Another alternative would be for law enforcement officers to purchase professional
liability insurance individually or through their unions. It is unclear whether and to what
extent personal liability insurance is available for law enforcement officers. Virginia law
requires that state troopers enter into a bond or purchase personal liability insurance (with
the premiums paid by the state). See VA. CODE ANN. § 52-7 (2013). But police officers
discussing this issue at an online bulletin board reported that there is no professional
liability insurance available for nonfederal law enforcement officers. See kingcop36,
Comment to Professional Liability Insurance, OFFICER.COM (July 31, 2009, 5:55 AM),
http://forums.officer.com/t121675/ (“You will find that no one offers professional liability
insurance for police officers (except on the federal level). . . . If you purchase an umbrella
policy, that will NOT cover you for your job as a law enforcement officer.”); see also
SCHUCK, supra note 13, at 85 (discussing the unlikelihood that law enforcement officers
can purchase private insurance for their on-duty conduct). The availability and sensibility
of professional liability insurance for law enforcement officers as a means of risk spreading
are topics worthy of further research and consideration.
330 See supra Part II.F & Appendix H (describing these cases).
331 In particularly egregious cases, officers’ resources could be completely depleted
before their employers would be required to contribute.
332 See supra note 196 and accompanying text (describing this possible explanation for
New York City’s requirement that some officers contribute).
333 See supra notes 304–05 and accompanying text (discussing this possibility and noting
the tendency of jurisdictions to indemnify punitive damages regardless of official policy).

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police reform.334 Peter Schuck has argued that police departments are
better suited than individual officers to bear the costs of liability
because departments “can better identify and evaluate different strategies for deterring illegal arrests and can also better predict the likely
effects of alternative deployments of police officers, training methods,
or arrest guidelines upon both deterrence and vigorous decisionmaking.”335 Payouts can also encourage departments to retrain, discipline, and fire officers when they engage in wrongdoing. With these
powers, departments can reduce the risk of future officer misconduct
despite widespread indemnification.
That municipalities can take these steps does not, however, mean
that they do. Many have argued that when municipalities pay settlements and judgments for the civil rights violations of their officers—
whether through indemnification, Monell, or vicarious liability—they
will be encouraged to better train, discipline, and supervise their
officers.336 My study reveals, however, that governments are already
absorbing the costs of individual officer liability. Despite this significant financial outlay—over $730 million from 2006 to 2011 in fortyfour large jurisdictions and over $9.1 million during that same period
in thirty-seven small and mid-sized jurisdictions—the general consensus is that most governments are not taking aggressive enough
action to investigate and discipline their officers and do not effectively
manage their law enforcement agencies.337
334 This same assumption operates in tort law. Private firms are expected to improve
accountability and behavior if they are forced to internalize litigation costs through
enterprise liability. See, e.g., Jon D. Hanson & Kyle D. Logue, The First-Party Insurance
Externality: An Economic Justification for Enterprise Liability, 76 CORNELL L. REV. 129,
143–44, 160–61 (1990) (arguing that manufacturers and consumers will make optimal
investments in accident prevention when they have internalized total accident costs, which
include litigation costs).
335 SCHUCK, supra note 13, at 104.
336 See, e.g., Owen v. City of Independence, 445 U.S. 622, 652 (1980) (“[T]he threat that
damages might be levied against the city may encourage those in a policymaking position
to institute internal rules and programs designed to minimize the likelihood of
unintentional infringements on constitutional rights.”); Fallon, supra note 16, at 496 (“If
government entities routinely indemnify their officials, they would certainly have an
incentive to provide those officials with training regarding applicable law.”); Fisk &
Chemerinsky, supra note 56, at 796 (arguing that vicarious liability “gives municipalities a
greater incentive to monitor, supervise, and control the acts of their employees,” and that
“[l]ocal governments, with inherently scarce resources, obviously want to minimize the
amount of their budget that is lost to paying damages”).
337 See, e.g., Rachel Harmon, Limited Leverage: Federal Remedies and Policing Reform,
32 ST. LOUIS U. PUB. L. REV. 33, 38 (2012) (“While data on police conduct and misconduct
is difficult to obtain, most participants in Saint Louis University Public Law Review’s
Symposium, and elsewhere, take for granted the need for additional efforts by police
departments to promote civil rights through departmental reform because civil rights
violations continue to occur.”); Schwartz, supra note 268, at 870 (“[I]nternal affairs

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Moreover, governments do not appear to be collecting enough
information about lawsuits to make educated decisions about whether
or how to reduce the police activities that prompt these suits. In previous work, I showed that few police departments gather and analyze
information about lawsuits brought against them and their officers;
departments do not keep track of which officers have been named as
defendants, the nature of the allegations made against them, the information developed during litigation, or cases’ outcomes.338 This study
of police indemnification shows that law enforcement agencies also
have little information about the volume and costs of lawsuits brought
against them and their officers. Few police departments had ready
access to information about the number of lawsuits filed against their
department and their officers, the amount paid in settlements and
judgments, whether punitive damages were awarded, and whether
their officers were indemnified for all or some of these financial penalties.339 Ignorance about litigation costs and indemnification decisions
was not limited to law enforcement agencies: Twenty-six of the largest
government entities across the country—including New York, Chicago, Philadelphia, and Houston—reported that they did not know
whether or when their officers had contributed to settlements or judgments. Furthermore, eighteen of the largest cities and counties—
including Harris County, San Diego, Baltimore County, and New
Orleans—reported that they keep no records in any government
agency or office reflecting how much they spend in lawsuits involving
the police in any given year.340
What explains governments’ willingness to spend millions of dollars in settlements and judgments of civil rights claims on behalf of
investigations have long been found to be inadequate and incomplete. Indeed, no outside
reviewer has ‘found the operations of internal affairs divisions in any of the major U.S.
cities satisfactory.’” (quoting HUMAN RIGHTS WATCH, SHIELDED FROM JUSTICE: POLICE
BRUTALITY AND ACCOUNTABILITY IN THE UNITED STATES 65 (1998))). This is not to say
that lawsuits have no effect on law enforcement agencies. As I have previously observed,
“high-profile cases and large damages awards may inspire behavior change” even if
“deterrence does not function as expected when it comes to run-of-the-mill damages
actions.” Schwartz, supra note 268, at 846. The fear of litigation more generally may also
cause departments to hire personnel and create recordkeeping and other procedures that
can lead to a reduction of harms. See generally Margo Schlanger, Operationalizing
Deterrence: Claims Management (in Hospitals, a Large Retailer, and Jails and Prisons), 2 J.
TORT L. 1 (2008) (observing the ways in which efforts to reduce liability risk can lead to
performance improvements in three organizational settings).
338 See generally Schwartz, supra note 18 (demonstrating this lack of information
tracking by law enforcement agencies).
339 See supra note 85 and accompanying text (describing the law enforcement agencies
that collected this information).
340 See Appendix G (listing jurisdictions without responsive data about litigation
payouts).

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their law enforcement officers without—in many instances—any systematic study or oversight of the amount spent in these cases? One
explanation for police departments’ indifference to lawsuits is that
they are not financially responsible for satisfying settlements and judgments against their officers. Although this study did not aim to determine which entities within municipal governments satisfied
settlements and judgments against the police—a topic worthy of
future research—anecdotal evidence suggests that police litigation
costs are often paid from a city’s general budget or insurer with limited or no direct impact on the finances of the police department.341
So, in many departments, there is not just indemnification, but double
indemnification—the individual officers are indemnified and the
police department itself is indemnified by the city, which pays settlements and judgments against officers out of a general fund.
What, then, explains municipalities’ indifference to these costs?
Perhaps, as others have argued, governments do not respond to financial incentives as do actors in the private sector.342 If government
actors aim to maximize political capital, not dollars, they will not pay
attention to lawsuits unless it is in their political interest to do so. And,
for any number of reasons—including pressure by police unions,343
public apathy,344 or an interest in appearing tough on crime345—even
millions of dollars paid to resolve police misconduct suits may not
341 See, e.g., HUMAN RIGHTS WATCH, supra note 337, at 80 (“[I]n most cities . . . civil
settlements paid by the city on behalf of an officer usually are not taken from the police
budget but are paid from general city funds.”); Miller & Wright, supra note 15 at 781–82
(“[T]he monetary cost of judgments against police are not always fully or directly borne by
police departments or by individual officers. Civil judgments come out of city or county
funds, or perhaps from insurance policies that the local government purchases—i.e., from
taxpayers.”); Schwartz, supra note 18, at 1047–48 (describing New York City’s practice of
satisfying settlements and judgments out of the city’s general budget).
342 See, e.g., Harmon, supra note 337, at 46 (“[Governmental budgetary outlays] do not
translate easily into political and financial costs for police chiefs and the political actors
that shape their incentives and budgets . . . .”); Levinson, supra note 72, at 347 (“Because
government actors respond to political, not market, incentives, we should not assume that
government will internalize social costs just because it is forced to make a budgetary
outlay.”).
343 See, e.g., Rachel A. Harmon, The Problem of Policing, 110 MICH. L. REV. 761, 799
(2012) (“Collective bargaining rights deter department-wide changes intended to prevent
constitutional violations . . . .”); Samuel Walker, Institutionalizing Police Accountability
Reforms: The Problem of Making Police Reforms Endure, 32 ST. LOUIS U. PUB. L. REV.
57, 71 (2012) (“[I]t seems that virtually everyone with an interest in policing—citizens, civic
leaders, reform activists, and scholars—believes that police unions are extremely powerful,
have a major influence on police practices, and are a principal obstacle to change.”).
344 See Harmon, supra note 343, at 811–12 (observing that “the harms of policing are
unevenly distributed” and “those who suffer the extra burdens of policing frequently lack
the cohesiveness and organization necessary for . . . advocacy success”). The costs of
settlements and judgments are more evenly distributed, but individual taxpayers may not
be sufficiently motivated to organize around the costs of police misconduct suits.

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have significant enough political ramifications to lead government
officials to pay sustained attention to these suits. Or, perhaps, governments do respond to financial incentives, but the money spent on
police misconduct suits is a relatively small portion of most jurisdictions’ budgets and so does not prompt reform.346
This Article does not endeavor definitively to diagnose the cause
of widespread inattention to lawsuit costs and information, nor does it
offer a definitive solution to strengthen the link between police misconduct litigation and police accountability efforts. There are several
possible measures to consider, including: requiring police departments
to bear more financial responsibility for litigation costs,347 allowing
345 See, e.g., id. at 811 (“[C]hiefs are usually better rewarded for maintaining order and
reducing crime than protecting civil rights.”); Miller & Wright, supra note 15, at 782
(observing that lawsuit payouts may cause government officials to “reward police with
larger budgets, since the political returns for higher police funding and appearing tough on
crime may be worth the budgetary cost”).
346 For example, the approximately $8.9 million paid to plaintiffs in civil rights cases
brought against the Los Angeles Sheriff’s Department and its deputies each year is just
.30% of the Sheriff’s Department’s $2.9 billion budget, and just .04% of the county’s $26
billion budget in 2013–14. See COUNTY OF LOS ANGELES 2013–14 FINAL BUDGET 63
(2013), available at http://ceo.lacounty.gov/pdf/portal/2013-14%20Final%20Budget%2011
2713.pdf (describing the Sheriff’s Department’s budget); COUNTY OF LOS ANGELES FINAL
ADOPTED BUDGET CHARTS 2013–14, at 2, available at http://ceo.lacounty.gov/pdf/budget/
2014/2013-14%20Final%20Adopted%20Budget%20Charts.pdf (describing the county’s
budget). The approximately $176,000 paid to plaintiffs in civil rights cases brought against
the Montgomery County Police Department and its officers each year is less than .07% of
the police department’s over $260 million budget and less than .004% of the county’s $4.81
billion budget in fiscal year 2014. See MONTGOMERY CNTY. POLICE DEP’T, FY14
OPERATING BUDGET AND PUBLIC SERVICES PROGRAM FY14–15, at 1, available at http://
www.montgomerycountymd.gov/OMB/Resources/Files/omb/pdfs/fy14/psp_pdf/pol.pdf
(describing the police department budget); Memorandum from Jennifer A. Hughes, Dir.,
Off. of Mgmt. & Budget, to Interested Readers (July 1, 2013), available at http://www.mont
gomerycountymd.gov/OMB/Resources/Files/omb/pdfs/fy14/psp_pdf/message.pdf
(describing the Montgomery County budget for fiscal year 2014). The approximately $2.2
million paid to plaintiffs in civil rights cases brought against the Albuquerque Police
Department and its officers each year is just 1.37% of the police department’s over $162
million budget and .26% of the city’s $870 million budget in 2013–14. See CITY OF
ALBUQUERQUE FY14 APPROVED BUDGET 1, 22 (2013), available at http://documents.cabq
.gov/budget/fy-14-approved-budget.pdf (describing the city and police department
budgets).
347 This is a recommendation I have previously made regarding lawsuits against the New
York City Police Department. See Joanna C. Schwartz, Watching the Detectives, N.Y.
TIMES, June 16, 2011, at A35 (“[T]he city could require the Police Department to settle
lawsuits out of its own budget, instead of the city’s general coffers. Perhaps if the
department held its own purse strings, it would find more to learn from litigation.”). This is
also a recommendation made previously by the New York City Comptroller, who observed
that the City’s Health and Hospitals Corporation instituted risk management efforts and
reduced litigation costs after becoming financially responsible for claims. See JOHN C. LIU,
CITY OF NEW YORK OFFICE OF THE COMPTROLLER, CLAIMS REPORT FISCAL YEAR 2011,
at 8 (2012) (“[T]he Comptroller’s Office again recommends that the City implement a
process whereby agencies bear some financial accountability for claim activity.”).

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city or county councils to oversee police litigation expenditures more
closely,348 hiring outside auditors to review litigation,349 and
improving policies to integrate litigation data into police risk management.350 If Monell were replaced with respondeat superior, some
manner of defense from vicarious liability could incentivize strong
training, supervision, and disciplinary policies and practices.351 Federal or state governments could award grants to chiefs who take
proactive approaches to improve police accountability.352
Regardless of the means used to tighten the link between lawsuits
and police decisionmaking, police misconduct suits will not have their
intended deterrent effect on law enforcement officials until governments pay closer attention to the costs and information associated
with these suits. If police departments do not gather and analyze
information from lawsuits and do not know how much has been spent
in settlements and judgments, they cannot assess which officers and
which types of police action lead to lawsuits. And if large cities and
counties do not keep track of how many taxpayer dollars are spent
satisfying settlements and judgments against their law enforcement
officers, they are likely doing little to oversee police department litigation finances or to encourage steps that would reduce payouts. Proposed doctrinal reforms to strengthen lawsuits’ deterrent effects will
348 The New York City Council has attempted to get additional access to police lawsuits
and payouts. For a description of these efforts, see Schwartz, supra note 268, at 874 n.184.
349 See Schwartz, supra note 268, at 849–52 (describing outsiders’ review of police
misconduct cases in the Los Angeles County Sheriff’s Department and police departments
in Seattle, Portland, Denver, and Chicago); Walker, supra note 343, at 84 (arguing that
“the police auditor form of citizen oversight” is the best available means of maintaining
police accountability reforms over the long term).
350 See Schwartz, supra note 268 (describing policies to gather and analyze litigation
data in five litigation-attentive law enforcement agencies).
351 The Supreme Court created an analogous affirmative defense to liability in the Title
VII context by allowing an employer to defend against hostile work environment claims by
showing that it took reasonable care to protect against or remedy a hostile working
environment, and that the employee did not take advantage of measures adopted by the
employer to address workplace harassment. See Faragher v. City of Boca Raton, 524 U.S.
775, 807 (1998); Burlington Indust., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Scholars have,
however, criticized lower courts’ application of the defense. See, e.g., Joanna L. Grossman,
The First Bite Is Free: Employer Liability for Sexual Harassment, 61 U. PITT. L. REV. 671,
677 (2000) (“As applied, the affirmative defense undermines Title VII’s goal of
compensating victims of discrimination while not serving its deterrence rationale.”);
Martha S. West, Preventing Sexual Harassment: The Federal Courts’ Wake-Up Call for
Women, 68 BROOK. L. REV. 457, 461 (2002) (observing that federal courts “are
interpreting ‘reasonable care’ in the first prong of the new affirmative defense to require
only minimal prevention efforts by the employer” and are requiring plaintiffs “to produce
hard-to-find evidence of specific facts justifying any failure on their part to complain to
employers”).
352 See Harmon, supra note 337, at 55 (describing ways in which the federal government
could encourage police accountability through grants and other incentives).

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also fail. Reforms that increase the costs of police misconduct litigation (whether by doing away with qualified immunity and Monell or
by allowing punitive damages against municipalities) will not lead to
improvements in policing unless governments and police departments
pay closer attention to the costs and information associated with these
suits.
CONCLUSION
The assumption that law enforcement officers are personally
responsible for settlements and judgments entered against them
underlies several judicial doctrines that limit plaintiffs’ ability to
recover compensatory and punitive damages in civil rights damages
actions. Defense attorneys also use the assumption that police officers
will be held personally liable to their strategic benefit in the litigation
of police misconduct cases. Yet, this Article reveals that officers
almost never contribute anything to settlements and judgments in
police misconduct suits. Law enforcement officers employed by the
forty-four largest jurisdictions in my study were personally responsible
for just .02% of the over $730 million paid to plaintiffs in police misconduct suits between 2006 and 2011. Law enforcement officers
employed by the thirty-seven small and mid-sized departments in my
study paid nothing towards settlements and judgments entered against
them during this period. Officers did not contribute to settlements and
judgments even when they were disciplined, terminated, or criminally
prosecuted for their misconduct. And officers were not required to
contribute to settlements and judgments even when applicable law
prohibited indemnification.
For several decades, the Supreme Court has crafted civil rights
doctrines—including qualified immunity and limitations on municipal
liability and punitive damages—based on unfounded assumptions,
and many times has done so in ways that make it more difficult for
plaintiffs to prevail. This Article rebuts one of those assumptions: that
law enforcement officers are personally responsible for settlements
and judgments entered against them. In so doing, it raises related
questions, including how the threat of suit influences officer behavior,
the role of municipal liability claims in the litigation of police misconduct cases, how regional variations in civil rights litigation practice
may influence the frequency with which officers are sued and the likelihood that plaintiffs prevail, and the budgetary impact of widespread
indemnification on law enforcement agencies.
This study additionally prompts questions about the empirical
foundations for related doctrines. As just one example, prosecutors

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enjoy absolute immunity from suit in part because “[t]he public trust
of the prosecutor’s office would suffer if he were constrained in
making every decision by the consequences in terms of his own potential liability in a suit for damages.”353 The absolute immunity granted
to prosecutors makes it exceedingly difficult for plaintiffs to civilly
challenge wrongful convictions and other constitutional violations.354
Yet, assuming that prosecutors would be indemnified as frequently as
police officers currently are, absolute immunity may be an unduly
strong protection. Judges and legislators also have absolute immunity,355 but are as likely—if not more likely—than police officers to be
indemnified.
Only with a grounded understanding of the realities of § 1983 litigation can it be possible to craft doctrines that effectively balance “the
importance of a damages remedy to protect the rights of citizens” and
“the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.”356 Scholars should endeavor to answer the
remaining, pressing empirical questions about the realities of civil
rights litigation. Courts should then modify civil rights doctrines to the
extent that they are inconsistent with these realities.
In an ideal world, all the pressing empirical questions about the
realities of civil rights litigation would be answered at once, allowing
civil rights doctrine and practice to be comprehensively and cohesively
reconfigured. But the perfect should not be the enemy of the good.
This Article reveals that officers are virtually always indemnified.
Courts should now adjust civil rights doctrines so that they no longer
rely on counterfactual assumptions about officers’ liability exposure.

353

Imbler v. Pachtman, 424 U.S. 409, 424–25 (1976).
For a description of the pervasiveness of prosecutorial misconduct and limited
safeguards and remedies to protect against prosecutorial misconduct, see Margaret Z.
Johns, Unsupportable and Unjustified: A Critique of Absolute Prosecutorial Immunity, 80
FORDHAM L. REV. 509, 512–22 (2011).
355 See Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998) (holding that local legislators have
absolute immunity when acting in their legislative capacity); Stump v. Sparkman, 435 U.S.
349, 356–57 (1978) (holding that judges are absolutely immune from liability so long as
they do not act in “clear absence of all jurisdiction”).
356 Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (quoting Butz v. Economou, 438 U.S.
478, 506 (1978)).
354

OF

SETTLEMENTS
AND

JUDGMENTS
IN

CIVIL RIGHTS CASES (2006–2011)

9461
7202
5655
4847
3529
3389
3388
3053
2990

Los Angeles Cnty. Sheriff’s Dep’t (CA)

California Highway Patrol (CA)

Cook Cnty. Sheriff’s Office (IL)

New York State Police (NY)

Texas Dep’t of Public Safety (TX)

Dallas Police Dep’t (TX)

Phoenix Police Dep’t (AZ)

New Jersey State Police (NJ)

Baltimore Police Dep’t (MD)

9727

36,023

Sworn
Officers

Los Angeles Police Dep’t (CA)

New York City Police Dep’t (NY)

Agency

$11,647,127

128

64

65

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

35

Officers Who Were
Not Fully
Indemnified

$0

$0

$0

$0

$0

$0

$0

$0

$0

$300

$114,000

Amount Officers
Were Required to
Pay

NEW YORK UNIVERSITY LAW REVIEW

$12,231,825.22

5

10

105

0

0

0

1

34

Cases in which
Officers Were Not
Fully Indemnified

Seq: 78

$11,894,824.00

$637,500

$188,900.00

$11,411,922.72

313

79

248

147

6887

Civil Rights Cases in
which Plaintifs
Received Payment

unknown

$58,278,267.11

$19,114,022.52

$53,657,726.19

$38,734,282.27

$348,274,595.81

Total Amount Awarded
in Civil Rights
Settlements and
Judgements

962

The following table provides detailed information regarding the indemnification of settlements and judgments in the fortyfour largest jurisdictions in my study from 2006-2011. By column, the table shows (1) the police agency and state, (2) the number
of sworn officers in each jurisdiction, (3) the amount awarded in settlements and judgments, (4) the number of cases in which
plaintiffs received payment, (5) the total number of cases in which officers were not indemnified for part or all of a settlement or
judgment, (6) the total number of officers who were not indemnified for part or all of a settlement or judgment, and (7) the total
amount officers were required to pay. Departments are listed in order of department size by number of sworn officers, according
to BJS LAW ENFORCEMENT CENSUS DATA, supra note 82. See Appendix I for the data sources for each jurisdiction.

APPENDIX A: INDEMNIFICATION

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1987
1940
1934

Milwaukee Police Dep’t (WI)

San Francisco Police Dep’t (CA)

Honolulu Police Dep’t (HI)

1624
1616
1606
1578

Cleveland Police Dep’t (OH)

Florida Highway Patrol (FL)

Prince George’s Cnty. Police Dep’t (MD)

1662

Jacksonville Sheriff’s Office (FL)

$17,285,895.66

$295,079.80

$3,474,253.87

$7,266,670.67

$1,208,300.00

$1,000,673.31

$10,466,172.00

$2,682,627.25

$9,835,069.87

$6,162,831.20

$30,000

$901,100.00

$904,351.85

$11,049,735.00

$4,878,070.00

$1,664,848.17

$13,608,772.27.00

$9,464,370.02

85

8

35

148

15

14

29

41

44

36

1

12

19

44

19

54

93

24

30

32

74

0

0

0

0

0

0

2

0

0 or 1

0

0

0

0

0

0

0

0

0

0

0

0 or 1

Cases in which
Officers Were Not
Fully Indemnified

0

0

2

0

0 or 1

0

0

0

0

0

0

0

0

0

0

0

0 or 1

0

0

0

0

Officers Who Were
Not Fully
Indemnified

$0

$0

$37,000

$0

$0–20,000

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

Unknown

$0

$0

$0

$0

Amount Officers
Were Required to
Pay

Seq: 79

Broward Cnty. Sheriff’s Office (FL)

1719
1672

Charlotte-Mecklenburg Police Dep’t (NC)

Michigan State Police (MI)

$2,576,748.00
$16,394,990.95

Civil Rights Cases in
which Plaintifs
Received Payment

unknown

Atlanta Police Dep’t (GA)

1794
1732

Orange Cnty. Sheriff’s Dep’t (CA)

1797

2020

San Antonio Police Dep’t (TX)

San Bernardino Cnty. Sheriff’s Dep’t (CA)

2105

Illinois State Police (IL)

1886

2147

Riverside Cnty. Sheriff’s Dep’t (CA)

1827

2181

Boston Police Dep’t (MA)

North Carolina State Highway Patrol (NC)

2310

Massachusetts State Police (MA)

$5,062,541.92

Total Amount Awarded
in Civil Rights
Settlements and
Judgements

June 2014]

Columbus Police Dep’t (OH)

2942

Sworn
Officers

Las Vegas Metro. Police Dep’t (NV)

Agency

\\jciprod01\productn\N\NYU\89-3\NYU303.txt
28-MAY-14
11:25

POLICE INDEMNIFICATION
963

1020
980

Albuquerque Police Dep’t (NM)

Tampa Police Dep’t (FL)
144,446

1046

Oklahoma City Police Dep’t (OK)

Total

1104

Miami Police Dep’t (FL)

Seattle Police Dep’t (WA)
1206

1283

San Jose Police Dep’t (CA)

1132

1382

Kansas City Police Dep’t (MO)

El Paso Police Dep’t (TX)

1421

Fort Worth Police Dep’t (TX)

$735,270,772.11

$3,820,000.00

$13,394,194.01

$207,250.00

$4,235,787.50

$279,000.00

$1,055,210.06

$3,936,205.98

$4,814,861.99

$2,656,467.86

$2,189,200.00

$3,166,501.00

$3,231,999.06

Total Amount Awarded
in Civil Rights
Settlements and
Judgements

11

85

9

27

16

23

39

26

15

11

16

39

9225

Civil Rights Cases in
which Plaintifs
Received Payment

0

0

0

0

0

0

0

0

0

0

0

0

37–39

Cases in which
Officers Were Not
Fully Indemnified

38–40

0

0

0

0

0

0

0

0

0

0

0

0

Officers Who Were
Not Fully
Indemnified

$151,300–$171,300

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

Amount Officers
Were Required to
Pay

964

Montgomery Cnty. Police Dep’t (MD)

1515
1489

Austin Police Dep’t (TX)

1525

Sworn
Officers

Denver Police Dep’t (CO)

Agency

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unknown
Seq: 80

NEW YORK UNIVERSITY LAW REVIEW

28-MAY-14
11:25

[Vol. 89:885

OF

SETTLEMENTS
AND

JUDGMENTS
IN

ALL TYPES
OF

CASES (2006–2011)

9727
4847
3529
3053
2942
2147
2105
2020
1940
1934

Los Angeles Police Dep’t (CA)

New York State Police (NY)

Texas Dep’t of Public Safety (TX)

New Jersey State Police (NJ)

Las Vegas Metro. Police Dep’t (NV)

Riverside Cnty. Sheriff’s Dep’t (CA)

Illinois State Police (IL)

San Antonio Police Dep’t (TX)

San Francisco Police Dep’t (CA)

Honolulu Police Dep’t (HI)

Sworn
Officers

37

83

103

176

0

0

0

0

0

1

0

0

0

0 or 1

Cases in which
Officers Were Not
Fully Indemnified

0

0

0

0 or 1

0

0

0

0

0

1

Officers Who Were
Not Fully
Indemnified

$0

$0

$0

Unknown

$0

$0

$0

$0

$0

$300

Amount Officers
Were Required to
Pay

Seq: 81

$1,185,258.00

$17,681,128.57

$2,181,976.63

$17,835,874.54

53

140

142

56

235

514

Cases in which
Plaintiffs Received
Payment

unknown

$12,404,155.00

$6,635,048.39

$16,031,225.71

$2,216,572.80

$14,956,648.39

$96,094,138.08

Total Amount Awarded
in Settlements and
Judgments

June 2014]

Agency

The following table provides detailed information regarding the total payouts and indemnification decisions for all cases, not
solely civil rights cases, from 2006-2011, for the largest agencies in my study that provided information for all types of cases. By
column, the table shows (1) the police agency and state, (2) the number of sworn officers in each jurisdiction, (3) the total
awarded in settlements and judgments in all types of cases, (4) the total number of cases in which plaintiffs received payment, (5)
the total number of cases in which officers were not indemnified for part or all of a settlement or judgment, (6) the total number
of officers who were not indemnified for part or all of a settlement or judgment, and (7) the total amount officers were required
to pay. Departments are listed in order of department size by number of sworn officers, according to BJS LAW ENFORCEMENT CENSUS DATA, supra note 82. See Appendix I for the data sources for each jurisdiction.

APPENDIX B: INDEMNIFICATION

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POLICE INDEMNIFICATION

11:25

965

1797
1732
1719
1672

San Bernardino Cnty. Sheriff’s Dep’t
(CA)

Michigan State Police (MI)

Atlanta Police Dep’t (GA)

Charlotte-Mecklenburg
(NC)

1606
1578
1525
1489
1421
1382
1206
1020
980

Florida Highway Patrol (FL)

Prince George’s Cnty. Police Dep’t (MD)

Denver Police Dep’t (CO)

Fort Worth Police Dep’t (TX)

Kansas City Police Dep’t (MO)

San Jose Police Dep’t (CA)

Montgomery Cnty. Police Dep’t (MD)

Albuquerque Police Dep’t (NM)

Tampa Police Dep’t (FL)

3074

13

109

56

49

34

21

87

164

15

67

303

3 or 4

0

0

0

0

0

0

0

0

0

2

0

0

0

0

0

0

0

3 or 4

0

0

0

0

0

0

0

0

0

2

0

0

0

0

0

0

0

Officers Who Were
Not Fully
Indemnified

$0

$0

$0

$0

$0

$0

$0

$37,300

$0

$0

$0

$0

$0

$0

$0

$0

$0

$37,000

Amount Officers
Were Required to
Pay

NEW YORK UNIVERSITY LAW REVIEW

$296,055,413.72

$3,845,000.00

$15,138,589.91

$5,536,154.30

$5,325,491.24

$3,481,609.25

$2,869,227.01

$4,235,909.65

$20,410,188.36

$386,736.30

$4,541,919.88

$12,459,931.55

28

431

58

68

1

Cases in which
Officers Were Not
Fully Indemnified

Seq: 82

60,324

1616

Cleveland Police Dep’t (OH)

$2,371,780.34

$13,075,959.86

$4,882,184.85

$8,077,105.11

$30,000.00

31

Cases in which
Plaintiffs Received
Payment

unknown

Total

1624

Broward Cnty. Sheriff’s Office (FL)

Dep’t

1827

North Carolina State Highway Patrol
(NC)

$2,165,600.00

Total Amount Awarded
in Settlements and
Judgments

966

Police

1886

Sworn
Officers

Columbus Police Dep’t (OH)

Agency

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[Vol. 89:885

OF

TOTAL LITIGATION COSTS SPENT
ON

CIVIL RIGHTS CASES (2006–2011)

$13,075,959.86

Atlanta Police Dep’t (GA)

$5,539,144.64
$257,560,266.00

$188,900.00

$10,466,172.00

$201,444,893.00

$4,235,787.50

$2,189,200.00

$11,049,735.00

$38,741,707.62

$7,266,670.67

$2,682,627.25

$19,114,022.52

$1,000,673.31

$38,734,282.27

$1,055,210.06

80.0%

78.2%

76.5%

76.3%

62.5%

62.5%

58.3%

54.9%

49.5%

42.2%

40.3%

19.1%

8.5%

Percentage of Total Dollars Paid to
Plaintiffs in Civil Rights Cases

Seq: 83

Chicago Police Dep’t (IL)

Miami Police Dep’t (FL)

San Francisco Police Dep’t (CA)

$2,869,227.01

$61,959,183.15
$17,681,128.57

Philadelphia Police Dep’t (PA)

Fort Worth Police Dep’t (TX)

$12,459,931.55

Broward Cnty. Sheriff’s Office (FL)

$4,882,184.88

$38,613,837.00

$2,371,780.34

Civil Rights Payouts

unknown

Michigan State Police (MI)

California Highway Patrol (CA)

Charlotte-Mecklenburg Police Dep’t (NC)

$96,094,138.08

$5,536,154.30

Montgomery Cnty. Police Dep’t (MD)

Los Angeles Police Dep’t (CA)

$2,216,572.80

Texas Dep’t of Public Safety (TX)

Total Payouts

June 2014]

Agency

The following table provides detailed information regarding the total payouts and payouts in civil rights cases for the
nineteen large jurisdictions that provided detailed information about all types of cases. By column, the table shows (1) the police
agency and state, (2) the total amount paid to plaintiffs in all cases, (3) the total amount paid to plaintiffs in civil rights cases, and
(4) the percentage of total dollars paid to plaintiffs in civil rights cases. Jurisdictions are listed from the lowest to highest
percentage of dollars paid to plaintiffs in civil rights cases. The median percentage of total dollars spent on civil rights claims
(76.3%) is used to estimate the percentage of dollars spent in civil rights cases in jurisdictions that did not provide detailed
information.

APPENDIX C: PERCENTAGE

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28-MAY-14
11:25

POLICE INDEMNIFICATION
967

$3,190,664.24
$3,845,000.00

Austin Police Dep’t (TX)

Tampa Police Dep’t (FL)

$15,138,589.91

Albuquerque Police Dep’t (NM)
$5,325,491.24

$60,863,207.39

San Jose Police Dep’t (CA)

$20,410,188.36

Metro. Police Dep’t (DC)

Total Payouts

Prince George’s Cnty. Police Dep’t (MD)

Agency

Civil Rights Payouts

$3,820,000.00

99.3%

99.2%

90.4%

88.5%

86.9%

84.7%

968

$3,166,501.00

$4,814,861.99

$13,394,194.01

$52,875,616.18

$17,285,895.66

Percentage of Total Dollars Paid to
Plaintiffs in Civil Rights Cases

\\jciprod01\productn\N\NYU\89-3\NYU303.txt
unknown
Seq: 84

NEW YORK UNIVERSITY LAW REVIEW

28-MAY-14
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[Vol. 89:885

OF

CIVIL RIGHTS CASES RESOLVED
IN

PLAINTIFFS’ FAVOR (2006–2011)

160
130

Miami Police Dep’t (FL)

Montgomery Cnty. Police Dep’t (MD)

39

333

Prince George’s Cnty. Police Dep’t (MD)

21

164

28

304

56

71

514

10

29

11

85

14

148

23

27

147

Total Civil Rights
Cases Resolved
with Payment

53.8%

49.2%

53.8%

Unknown

43.1%

44.4%

47.6%

25.2%

Unknown

Percentage of Total
Cases Resolved with
Payment

28.2%

25.5%

26.9%

Unknown

17.7%

16.9%

13.6%

4.5%

Unknown

Percentage of Civil
Rights Cases
Resolved with
Payment

52.4%

51.8%

50.0

48.7%

41.1%

38.0%

28.6%

17.9%

6.7%

Percentage of Total
Cases Resolved with
Payment That Are
Civil Rights Cases

Seq: 85

Fort Worth Police Dep’t (TX)

52

Charlotte-Mecklenburg Police Dep’t (NC)

Unknown

1079

Los Angeles Police Dep’t (CA)

56

431

Total Cases
Resolved with
Payment

unknown

Broward Cnty. Sheriff’s Office (FL)

222

Unknown

Texas Dep’t of Public Safety (TX)

Atlanta Police Dep’t (GA)

Total Cases
Resolved

June 2014]

Agency

The following table provides detailed information regarding the resolution of civil rights cases for the eighteen large departments that provided detailed information about all types of cases. By column, the table shows (1) the police agency and state, (2)
the total number of all types of cases resolved (by dismissal, settlement, or judgment), (3) the total number of all types of cases
resolved with payment to plaintiffs, (4) the total number of civil rights cases resolved with payment to plaintiffs, (5) the percentage of all cases resolved with payment to plaintiffs, (6) the percentage of civil rights cases resolved with payment to plaintiffs, and (7) the percentage of all cases resolved with payment to plaintiffs that are civil rights cases. Jurisdictions are listed from
the lowest to highest percentage of cases resolved with payment to plaintiffs that are civil rights cases. Where information from
an agency was unknown, the median value of the data presented in columns (5: median = 46.0%), (6: median = 20.6%), and (7:
median = 52.7%) is used to provide an estimate.

APPENDIX D: PERCENTAGE

\\jciprod01\productn\N\NYU\89-3\NYU303.txt
28-MAY-14

POLICE INDEMNIFICATION

11:25

969

163

68
Unknown

Tampa Police Dep’t (FL)

Unknown

121

Unknown

Austin Police Dep’t (TX)

Albuquerque Police Dep’t (NM)

Michigan State Police (MI)

Chicago Police Dep’t (IL)

1392

13

20

109

58

2536

1043

173

49

83

Total Cases
Resolved with
Payment

95

26

44

11

16

85

41

1461

585

Total Civil Rights
Cases Resolved
with Payment

Unknown

29.4

Unknown

47.9%

Unknown

74.9%

Unknown

30.1%

26.2%

Percentage of Total
Cases Resolved with
Payment

Unknown

23.5%

Unknown

33.9%

Unknown

42.0%

Unknown

16.0%

13.9%

Percentage of Civil
Rights Cases
Resolved with
Payment

84.6%

80.0%

78.0%

70.7%

57.6%

56.1%

54.9%

53.1%

53.0%

Percentage of Total
Cases Resolved with
Payment That Are
Civil Rights Cases

970

Philadelphia Police Dep’t (PA)

Unknown

San Jose Police Dep’t (CA)

Metro. Police Dep’t (DC)

317

Total Cases
Resolved

San Francisco Police Dep’t (CA)

Agency

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unknown
Seq: 86

NEW YORK UNIVERSITY LAW REVIEW

28-MAY-14
11:25

[Vol. 89:885

SETTLEMENTS AND JUDGMENTS
ALL TYPES OF CASES (2006–2011)
OF

IN

SMALLER DEPARTMENTS

476

424
393

Howard Cnty. Police Dep’t (MD)

Summit Cnty. Sheriff’s Office (OH)

530

Minnesota State Patrol (MN)

447

590

Cobb Cnty. Police Dep’t (GA)

Fort Wayne Police Dep’t (IN)

679

Contra Costa Cnty. Sheriff’s Office (CA)

$867,500.00
(plus two confidential
settlements)

3

Unknown

76

11

Unknown

11

9

Unknown

Cases in which
Plaintiffs Received
Payment

0

0

0

0

0

0

0

0

Cases in which Officers
Were Not Fully
Indemnified

0

0

0

0

0

0

0

0

Officers Who Were
Not Fully
Indemnified

$0

$0

$0

$0

$0

$0

$0

$0

Amount Officers Were
Required to Pay

Seq: 87

Unknown

$1,017,760.78

$216,000.00

Unknown

$493,412.00

$304,100.00

Unknown

Amount Awarded in
Settlements and
Judgments

unknown

Manatee Cnty. Sheriff’s Office (FL)

702

Sworn
Officers

Raleigh Police Dep’t (NC)

Agency

June 2014]

The following table provides detailed information regarding settlements and judgments for the small and mid-sized agencies
in my study from 2006-2011. By column, the table shows (1) the police agency and state, (2) the number of sworn officers in each
jurisdiction, (3) the total awarded in settlements and judgments, (4) the total number of cases in which plaintiffs received payment, (5) the total number of cases in which officers were not indemnified for part or all of a settlement or judgment, (6) the total
number of officers who were not indemnified for part or all of a settlement or judgment, and (7) the total amount officers were
required to pay. Departments are listed in order of department size by number of sworn officers, according to BJS LAW
ENFORCEMENT CENSUS DATA, supra note 82. Jurisdictions with an asterisk (*) are those that only provided information
about civil rights cases; in the remainder, the information provided concerns all types of cases. See Appendix K for a complete
list of small and mid-sized departments queried and the data sources for each responsive jurisdiction.

IN

APPENDIX E: INDEMNIFICATION

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28-MAY-14

POLICE INDEMNIFICATION

11:25

971

155
133
130

Naperville Police Dep’t (IL)

Pueblo Cnty. Sherriff’s Office (CO)

Decatur Police Dep’t (AL)

Schaumburg Police Dep’t (IL)*

88

184

Quincy Police Dep’t (MA)

Pocatello Police Dep’t (ID)

205

Tulsa Cnty. Sheriff’s Office (OK)

101

237

Waco Police Dep’t (TX)

Avondale Police Dep’t (AZ)

246

Overland Park Police Dep’t (KS)

120

258

Springfield Police Dep’t (IL)

110

273

New Bedford Police Dep’t (MA)

2

4

Unknown

0

1

Unknown

7

8

0

0

0

0

0

0

0

0

0

0

0

0

4

At least 2

0

0

0

3

5

Unknown

0
0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

Officers Who Were
Not Fully
Indemnified

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

Amount Officers Were
Required to Pay

28-MAY-14

$48,700.00

$178,322.39

9
4

0

Cases in which Officers
Were Not Fully
Indemnified

NEW YORK UNIVERSITY LAW REVIEW

Unknown

$0

$125,000.00

Unknown

$186,000.00

$165,750.00
(plus two confidential
settlements)

$0

Unknown

$14,806.00
(plus two confidential
settlements)

$51,000.00

$146,957.25
(plus two confidential
settlements)

Unknown

$61,924.62
(plus two confidential
settlements)

$623,227.10

Unknown

Cases in which
Plaintiffs Received
Payment

Seq: 88

Sandy Police Dep’t (UT)

288

Boise Police Dep’t (ID)

Unknown

Amount Awarded in
Settlements and
Judgments

972

unknown

St. Mary’s Cnty. Sheriff’s Office (MD)

350
306

New Hampshire State Police (NH)

372

Sworn
Officers

Anchorage Police Dep’t (AK)

Agency

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[Vol. 89:885

15
10
9

Oldham Cnty. Sherriff’s Dep’t (KY)

Edgewood Police Dep’t (FL)

Evansville Police Dep’t (WI)

Total

8141

1

29

Phelps Cnty. Sheriff’s Office (MI)

Waterloo Police Dep’t (NE)

31

Lincolnton Police Dep’t (NC)

8

34

Town and Country Police Dep’t (MI)

5

55

Yellowstone Cnty. Sheriff’s Office (MT)

Jackson Twp. Police Dep’t (OH)

65

Eden Prairie Police Dep’t (MN)

$9,387,611.28+

$0

$220,051.14

$100,000.00

$337,500.00

$0

$0

$25,000.00

$0

$0

$1,632,100.00

Unknown

$2,572,500.00

Amount Awarded in
Settlements and
Judgments

0

2

1

0

0

1

0

0

7

1

6

183+

Cases in which
Plaintiffs Received
Payment

0

0

0

0

0

0

0

0

0

0

0

0

0

Cases in which Officers
Were Not Fully
Indemnified

0

0

0

0

0

0

0

0

0

0

0

0

0

Officers Who Were
Not Fully
Indemnified

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

$0

Amount Officers Were
Required to Pay

June 2014]

Fruitland Police Dep’t (ID)

82

Sworn
Officers

Hemet Police Dep’t (CA)

Agency

\\jciprod01\productn\N\NYU\89-3\NYU303.txt
unknown
Seq: 89

POLICE INDEMNIFICATION

28-MAY-14
11:25

973

OF

PUNITIVE DAMAGES
IN

CIVIL RIGHTS CASES (2006–2011)

California Highway Patrol (CA)

$4,005,522
(reduced to $55,000 by
the trial court, in a
decision affirmed on
appeal)

$126,500

$300

$2,860,100

Punitive Damages
Awarded by Juries from
2006 to 2011

1

5

1

6

Cases in which Punitive
Damages Were
Awarded

Cases in which Officers
Were Not Indemnified
for Punitive Damages
Awards

0

0

1

0

Officers Not
Indemnified for
Punitive Damages
Awards

0

0

1

0

$0

$0

$300
(though this was never
paid, as discussed supra
notes
197–202
and
accompanying text)

$0

Total Amount Officers
Were Required to Pay
to Satisfy Punitive
Damages Awards

unknown

Los Angeles Cnty. Sheriff’s Dep’t (CA)

Los Angeles Police Dep’t (CA)

New York City Police Dep’t (NY)

Agency

974

The following table sets out the jurisdictions in which I found proof that juries awarded punitive damages during the study
period, the amount ultimately awarded to plaintiffs (after reductions by the trial or appellate court), and indemnification decisions regarding these punitive damages awards. By column, the table shows: (1) the police agency and state, (2) the total awarded
in punitive damages, (3) the total number of cases in which punitive damages were awarded, (4) the number of cases in which
officers were not indemnified for punitive damages awards, (5) the total number of officers not indemnified for punitive damages
awards, and (6) the total amount officers were required to pay to satisfy punitive damages awards. Because many of these
punitive damages awards were ultimately vacated and the cases settled separately, it was impossible to isolate these punitive
damages awards from overall payments by each jurisdiction. Accordingly, the totals awarded in these cases are also included in
Appendix A. See Appendix I for the data sources for each jurisdiction.

APPENDIX F: INDEMNIFICATION

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$264,500
(reduced to $19,500 on
appeal)
$1,175,000
(reduced to $50,000 by
the trial judge, in a
decision affirmed on
appeal)

San Bernardino Cnty. Sheriff’s Dep’t
(CA)

Prince George’s Cnty. Police Dep’t (MD)

Total

Albuquerque Police Dep’t (NM)
$9,312,422
(reduced to $3,991,900)

$873,500

$2000

$5000
(affirmed on appeal)

Las Vegas Metro. Police Dep’t (NV)

20

1

1

1

3

1

Cases in which Punitive
Damages Were
Awarded

Cases in which Officers
Were Not Indemnified
for Punitive Damages
Awards

1

0

0

0

0

0

Officers Not
Indemnified for
Punitive Damages
Awards

1

0

0

0

0

0

$300

$0

$0

$0

$0

$0

Total Amount Officers
Were Required to Pay
to Satisfy Punitive
Damages Awards

June 2014]

Oklahoma City Police Dep’t (OK)

Punitive Damages
Awarded by Juries from
2006 to 2011

Agency

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unknown
Seq: 91

POLICE INDEMNIFICATION

28-MAY-14
11:25

975

\\jciprod01\productn\N\NYU\89-3\NYU303.txt

976

unknown

Seq: 92

28-MAY-14

NEW YORK UNIVERSITY LAW REVIEW

APPENDIX G: JURISDICTIONS

WITH

11:25

[Vol. 89:885

INCOMPLETE DATA

The following table sets out the twenty-six largest jurisdictions that did
not completely respond to my public records requests. By column, the table
shows: (1) the police agency and state; (2) the number of sworn officers in
each jurisdiction; (3) the total awarded in settlements and judgments in civil
rights actions from 2006 to 2011; and (4) the total number of cases in which
officers were not indemnified for part or all of a settlement or judgment.
Jurisdictions are listed in order of department size by number of sworn
officers, according to BJS LAW ENFORCEMENT CENSUS DATA, supra
note 82. Details of these exchanges are set out in Appendix J.
Agency

Chicago Police Dep’t (IL)

Sworn
Officers

13,354

Amount Awarded
in Settlements and
Judgments in Civil
Rights Actions

Number of Times an
Officer Was Not
Indemnified

$201,444,893
(believed
occurred
ever)

Unknown
to have
rarely, if

Philadelphia Police Dep’t (PA)

6642

$38,726,707.62

Unknown

Houston Police Dep’t (TX)

5053

$2,403,497.00

Unknown

Pennsylvania State Police (PA)

4458

$25,701,233.19

Unknown

Metro. Police Dep’t (DC)

3742

$52,875,616.18

Unknown

Miami-Dade Police Dep’t (FL)

3093

$5,060,773.29

Unknown

Nassau Cnty. Police Dep’t (NY)

2732

Unknown

Unknown

Suffolk Cnty. Police Dep’t (NY)

2622

Unknown

Unknown

Harris Cnty. Sheriff’s Office (TX)

2558

Unknown

Unknown
to have
rarely, if

(believed
occurred
ever)
Detroit Police Dep’t (MI)

2250

Unknown
(believed
occurred
ever)

Unknown
to have
rarely, if

San Diego Police Dep’t (CA)

1951

Unknown

Unknown

Baltimore Police Dep’t (MD)

1910

Unknown

Unknown
to have
rarely, if

(believed
occurred
ever)
Virginia State Police (VA)

1873

Unknown

Port Authority of NY/NJ

1667

Unknown

Unknown
Unknown

Indianapolis Metro. Police Dep’t (IN)

1582

Unknown

Unknown

Ohio State Highway Patrol (OH)

1560

Unknown

Unknown

Memphis Police Dep’t (TN)

1549

Unknown

Unknown

\\jciprod01\productn\N\NYU\89-3\NYU303.txt

June 2014]

unknown

Seq: 93

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POLICE INDEMNIFICATION

Agency

Sworn
Officers

Amount Awarded
in Settlements and
Judgments in Civil
Rights Actions
Unknown

977
Number of Times an
Officer Was Not
Indemnified

New Orleans Police Dep’t (LA)

1425

Unknown

Fairfax Cnty. Police Dep’t (VA)

1419

Unknown

Unknown

St. Louis Police Dep’t (MO)

1351

$2,693,195.93

Unknown

Nashville-Davidson Cnty. Police Dep’t (TN)

1315

Unknown

Unknown

Newark Police Dep’t (NJ)

1310

Unknown

Unknown

Louisville Metro Police Dep’t (KY)

1197

$5,003,702.66

Unknown

Cincinnati Police Dep’t (OH)

1082

Unknown

Unknown

DeKalb Cnty. Police Dep’t (GA)

1074

Unknown

Unknown

Tucson Police Dep’t (AZ)

1032

Unknown

Unknown

McNamara v. City of New York,
No. 06-CV-5585
Angulo v. City of New York, No.
251346/08
Sellers v. City of New York, No.
05-CV-1396

Nolan-Fine v. City of New York,
No. 05-CV-1055
Gonzalez v. City of New York,
No. 01-CV-5584
Kukiqi v. City of New York, No.
09-CV-0627
Santiago v. City of New York,
No. 07-CV-6257

Massey v. City of New York, No.
05-CV-8718
McKnight v. City of New York,
No. 06-CV-3220
Nandalall v. City of New York,
No. 07-CV-6257

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

plaintiffs’

home

and

Officer sexually assaulted a minor as she was leaving
school.

Officers unreasonably searched and arrested plaintiff.

Off-duty detective assaulted the plaintiff over a conflict
concerning a girlfriend, and then called the police and had
the plaintiff arrested.

Motorcyclist was killed after crashing while being chased
by two officers. NYPD surveillance video showed that the
officers drove off without getting help for the victim.
Departmental charges were filed against the officers.

NEW YORK UNIVERSITY LAW REVIEW

$25,000

$45,000

searched

Officer falsely arrested plaintiffs and used pepper spray
against them.

Officers unlawfully
assaulted plaintiffs.

Officer had plaintiff (officer’s sister) falsely arrested
following family inheritance dispute.

Seq: 94

$5000

$5000

$50,000

$305,000

$42,000

$200,000

$31,000

Two officers took naked photographs of the plaintiff
during a criminal investigation; one officer was fired and
tried (but acquitted) on criminal charges. One of these
officers was also not fully indemnified in the Lipka case,
infra.

Officer coerced a false affidavit from another officer.

Off-duty officer assaulted plaintiff and then provided false
information that led to plaintiff’s arrest.

Claim Details

CONTRIBUTE (2006–2011)

unknown

$5000

$5000

$5000

$5000

$6000

$70,000

$250,000

$16,500

Total Payout in Case

TO

978

$8000
($7500
by
one
officer; $500 by
another)

$10,000

$16,500

Officers’ Financial
Contribution

WHICH OFFICERS WERE REQUIRED

Case Name

IN

Agency

APPENDIX H: CASES

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Case Name
Baird v. City of New York, No.
4840/00

Oliveras v. City of New York,
No. 041879/08
Doe v. Del Rio, No. 06-CV-3761
Hassan v. Cornetta, No. 05-CV6547
Lugo v. Gallagher, No. 05-CV2327
Santiago v. City of New York,
No. 04-CV-3554
Lipka v. City of New York, No.
05-CV-0333

Taylor-Mickens v. City of New
York, No. 09-CV-7923

Chen v. City of New York, No.
06-CV-0315
Saeteros v. City of New York,
No. 05-CV-6883
Wells v. City of New York, No.
05-CV-10009

Agency

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

$35,000

$50,000

Officers stopped plaintiffs’ car and assaulted and arrested
plaintiffs.

Officer assaulted and arrested plaintiff, a parking control
specialist, following a verbal argument.

Unknown.

Plaintiff went to the 24th Precinct to file a CCRB
complaint; the lieutenant on duty discouraged her from
filing and then instructed officer to issue plaintiff a
summons.

Officer took improper photographs of the plaintiff as part
of an alleged crime investigation and made sexual
advances. This officer was also not fully indemnified in the
Sellers case, supra.

Officers assaulted plaintiff, rupturing his spleen.

Plain-clothed officers assaulted plaintiff outside a diner.

Seq: 95

$1250
($1000
by
one
officer; $250 by
another)

$1500

$36,000

$10,000

$80,000

$330,001

$90,000

Officer assaulted and falsely arrested plaintiff while
plaintiff was driving a taxicab.

Officers arrested and assaulted one plaintiff and sexually
assaulted another.

Off-duty officer sexually assaulted another officer.

Off-duty officer made obscene telephone calls to a
teenaged boy after his mother tried to file a civilian
complaint against two other officers in the precinct; the
officer was arrested on child endangerment charges.

Claim Details

unknown

$2000

$2250

$2500

$2500

$2500

$15,000

$200,002

$15,000

$25,000

Total Payout in Case

June 2014]

$3250

$5000

$5000

$5000

Officers’ Financial
Contribution

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POLICE INDEMNIFICATION

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Case Name
Roberson v. City of New York,
No. 06-CV-0213

Dobson v. City of New York, No.
05-CV-4352
Kudashvili v. City of New York,
10-CV-0774
Nelson v. City of New York, No.
05-CV-10776
Hasan v. Valentino, No. 03-CV3590
Kivetski v. City of New York,
No. 04-CV-7402
Boyd v. City of New York, 11CV-4899
Grullon v. City of New York, No.
06-CV-0969
Jean-Baptiste v. Morales, No. 09CV-0299
Varella v. City of New York, No.
09-CV-4668
Van Duyne v. City of New York,
10-CV-0925
Fogle v. City of New York, 10CV-1398
Fagan v. City of New York, No.
06-CV-0408

Agency

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

New York City Police Dep’t
(NY)

$250

$15,000

Officers unlawfully searched plaintiff and his car.

Officer falsely arrested and imprisoned plaintiff and used
excessive force.

Officer falsely arrested plaintiff and used excessive force.

Officer arrested and assaulted teenaged plaintiff at a bus
depot.

NEW YORK UNIVERSITY LAW REVIEW

$15,000

$20,000

$26,001

Officer falsely arrested and assaulted plaintiff.

Officer molested plaintiff after stopping her for an alleged
traffic violation.

Officers searched plaintiffs’ vehicle without a warrant,
used excessive force, and fabricated evidence against the
plaintiffs.

Officer placed unlicensed handgun in plaintiff’s car and
falsely arrested plaintiff.

Officers illegally searched plaintiff’s home, arrested her,
and illegally held her for over five hours.

Plaintiff was unreasonably stopped and frisked.

Seq: 96

$500

$500

$500

$20,000

$401,000

$37,000

$193,500

$45,000

$10,001

Officers assaulted and falsely arrested plaintiff in a
jewelry store.

Plaintiff was assaulted when he went to the 77th Precinct
to visit a friend who had been arrested.

Officer used a racially derogatory term during a traffic
stop. Roberson’s civilian complaint was substantiated, the
officer was found guilty by the trial commissioner, and the
Police Commissioner overturned the verdict.

Claim Details

unknown

$1000

$1000

$1000

$1000

$1000

$1000

$350,000

$15,000

$18,500

Total Payout in Case

980

$1000

$1000

$1000

Officers’ Financial
Contribution

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[Vol. 89:885

Unknown

37–39 cases

TOTAL

Taylor-Ewing v. City of Los
Angeles

Los Angeles Police Dep’t (CA)

Jacksonville Sheriff’s Office (FL)

Ferreri v. City of Cleveland, No.
09-CV-00621

Cleveland Police Dep’t (OH)

Unknown

Spratt v. Cleveland, No. 08-CV2237

Cleveland Police Dep’t (OH)

$151,300–$171,300

$5000–$20,000

Unknown

$300

$12,000

$25,000

Officers’ Financial
Contribution

At least $3,338,805

Unknown

Unknown

$160,300

$47,000

$45,000

Total Payout in Case

Officer contributed to a settlement in a use of force case,
although it may have been before 2006. The officer had
assets from a family business.

Officer contributed to a settlement, although it may have
been before 2006. The officer was disciplined following
the incident.

Officer was sued for false arrest and excessively tight
handcuffs.

Off-duty officer shot and killed someone at a housing
complex where the officer served as a security guard;
officer assigned $12,000 owed to him by the housing
complex to the decedent’s estate.

Officers assaulted plaintiff following a crash incident to an
unrelated police chase; one officer was criminally charged
with assault.

Claim Details

June 2014]

Illinois State Police (IL)

Case Name

Agency

\\jciprod01\productn\N\NYU\89-3\NYU303.txt
unknown
Seq: 97

POLICE INDEMNIFICATION

28-MAY-14
11:25

981

\\jciprod01\productn\N\NYU\89-3\NYU303.txt

982

unknown

Seq: 98

28-MAY-14

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[Vol. 89:885

APPENDIX I: SOURCE TABLE FOR RESPONSIVE
LARGER JURISDICTIONS
The following describes the data sources for information about the fortyfour largest jurisdictions in my study that provided responsive information
about payouts and indemnification decisions, organized from largest to
smallest jurisdiction as measured by full-time sworn personnel, according to
BJS LAW ENFORCEMENT CENSUS DATA, supra note 82.
New York City Police Department (NY). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Andrea Fastenberg,
Records Access Officer, N.Y.C. Law Dep’t, to Mariann Meier Wang, Partner, Cuti Hecker Wang LLP
(Nov. 9, 2012) (on file with the New York University Law Review) (including attachment listing lawsuits
concluded between 2006 and 2011). We agreed prior to production that Fastenberg would only produce
information about cases alleging § 1983 claims or state law claims for battery or assault. Telephone
Interview with Andrea Fastenberg, Records Access Officer, N.Y.C. Law Dep’t (Sept. 13, 2012). To
calculate the total paid to plaintiffs by New York City in police misconduct cases, I added the $114,000
contributed by individual officers (see below) to the $348,160,595.81 paid directly by New York City in §
1983 cases (this number comes from subtracting sixteen cases that should not have been in the data set, as
discussed below, from Fastenberg’s reported number).
New York City does not keep information about indemnification decisions. See Telephone
Interview with Andrea Fastenberg, supra (reporting that the City does not collect information about
indemnification denials). The City did, however, agree to provide me with a spreadsheet of fifty-six cases
in which it did not pay the total amount awarded to the plaintiff—suggesting the possibility that individual
officers may have contributed to settlements or judgments in one or more of these cases. See E-mail from
Andrea Fastenberg, Records Access Officer, N.Y.C. Law Dep’t, to author (Nov. 9, 2012, 12:29 PST) (on
file with the New York University Law Review). I then attempted to learn details of the outcome of each
case by (1) contacting the plaintiffs’ attorneys (and, in some instances, the parties) in each case; (2)
searching for information about the cases on Westlaw, Bloomberg, and the New York State courts site;
and (3) searching for news coverage about the cases. Based on this research, I found three cases in which
officers had to contribute to settlements in cases that fell within the study parameters. In twenty-one of
those fifty-six cases, I found evidence that third parties paid the difference; in another eight, the dockets
indicate that no individual police officer was a defendant at the time the case was resolved (but there were
third parties who could have paid the difference). In three cases, plaintiff’s attorneys confirmed that no
officer contributed to the settlement and in a fourth, the docket indicated that the city satisfied the
settlement. It appears that sixteen of the cases I reviewed should not have been included in New York
City’s data: Twelve involved motor vehicle accidents or other non–civil rights claims, three were resolved
outside the study period or overturned on appeal, and one concerned an off-duty incident. I have removed
the $1,436,000 paid by the City in these sixteen cases from the total amount of § 1983 payments, and
subtracted sixteen from the number of cases. This raises some concern about the integrity of New York
City’s data; there may well be many other cases in the records provided by New York City that are not
responsive to my request. No definitive information was available for the remaining four cases, but I did
confirm that New York City’s Corporation Counsel represented the officer defendants in each of these
cases, and learned from sources knowledgeable about Corporation Counsel practices that the City
indemnifies those officers it decides to represent as a matter of practice. See E-mail from Joel Berger,
Plaintiff’s Attorney and Former N.Y.C. Law Dep’t Exec., to author (Feb. 28, 2013, 17:00 PST) (on file with
the New York University Law Review); Telephone Interview with Attorney, Corp. Counsel, N.Y.C. Law
Dep’t (July 3, 2013) (on file with the New York University Law Review). The City has also reported, in
response to interrogatory requests in a lawsuit, that it satisfied every compensatory and punitive damages
award entered against officers it represented between 1996 and 2006. See Defendants’ Supplemental
Responses to Plaintiff’s Second Set of Interrogatory Requests at 5–6, Gyasi v. City of New York, No. 05CV-9453 (S.D.N.Y. Nov. 27, 2006).
Over a year after beginning this research, I learned that the City’s spreadsheet of fifty-six possible
nonindemnification cases only included state court cases in which the City did not pay the entire
settlement or judgment to the plaintiff, and that the City did not have a list of federal court cases in which
it satisfied only part of the payments to plaintiffs. See E-mail from Andrea Fastenberg, Records Access
Officer, N.Y.C. Law Dep’t, to author (July 12, 2013, 10:43 AM PDT) (on file with the New York University
Law Review). Accordingly, I manually searched Bloomberg Law for all cases filed between January 1,
2000, and December 31, 2011, in which New York City’s Corporation Counsel did not represent officer
defendants. Through PACER searches, e-mails to plaintiffs’ attorneys, and review of parties’ filings and
courts’ opinions, I identified thirty-one additional instances in which officers contributed to settlements in

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June 2014]

unknown

Seq: 99

POLICE INDEMNIFICATION

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983

civil rights cases. For details of these cases, see Appendix H. The total paid by officers in these thirty-four
cases was $114,000. (Note that there is no reason to believe that there are similar problems of
underinclusiveness in responses by other jurisdictions. New York City is unique in that it did not provide
me with information about indemnification, but instead provided me with case information from which I
deduced the indemnification decisions. In all other instances (except Cook County, described supra note
109 and accompanying text), the responsive jurisdictions directly provided me with information about
indemnification decisions. The data may certainly have other inaccuracies, described supra Part II.A, but
will not suffer from New York City’s particular underinclusivity issue.).
New York City did not provide information about punitive damages awards. A broad Westlaw
search of “‘new york’ /s police & punitive!” in all state and federal cases in New York between 2005 and
2012 revealed three cases in which punitive damages were awarded against NYPD officers. See
Manganiello v. City of New York, 612 F.3d 149, 154 (2d Cir. 2010) (affirming $1,426,261 in compensatory
damages, $75,000 in punitive damages, and $215,037.50 in attorneys’ fees); Ellis v. La Vecchia, 567 F.
Supp. 2d 601 (S.D.N.Y. 2008) (denying motion to set aside $2600 punitive damages award); Ferguson v.
City of New York, 901 N.Y.S.2d 609, 610 (App. Div. 1st Dep’t 2010) (affirming $2.7 million punitive
damages award). Interrogatory responses by the City of New York in the case of Gyasi v. City of New
York identified a fourth instance between 2006 and 2011 when a jury awarded punitive damages against an
NYPD officer. Scherer v. City of New York, No. 03-CV-8445 (RWS), 2007 WL 2710100 (S.D.N.Y. Sept. 7,
2007) (reporting a jury verdict of $1000 in punitive damages on May 1, 2006). A fifth case in which punitive
damages were awarded, brought to my attention by a practitioner in New York, is Cameron v. City of New
York. In that case, the jury awarded plaintiffs punitive damages totaling $52,500 against one officer and
$27,500 against another. See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for
Judgment as a Matter of Law or, Alternatively, for a New Trial at 8, Cameron v. City of New York, No. 06
CV 07798, 2010 WL 5885985 (S.D.N.Y. Dec. 29, 2010). I found a sixth case, Matthews v. City of New York,
during reviews of the dockets in all cases in which officers had non–Corporation Counsel representation.
In Matthews, $1000 in punitive damages was awarded against one officer, and $500 in punitive damages
was awarded against another officer. See Memorandum of Law in Opposition to Defendants’ Post-Trial
Motions, Matthews v. City of New York, No. 02-CV-00715 (E.D.N.Y. Aug. 8, 2005). I then confirmed with
the plaintiffs’ attorneys in each case that none of the involved officers satisfied the punitive damages
awards entered against them. See Defendants’ Supplemental Responses to Plaintiff’s Second Set of
Interrogatory Requests at 4, Gyasi v. City of New York, No. 05-CV-9453 (S.D.N.Y. Nov. 27, 2006)
(confirming that the City of New York satisfied the $1000 punitive damages award in Scherer); Stipulation
of Settlement and Discontinuance at 2, Matthews v. City of New York, No. 02-CV-00715 (E.D.N.Y. June
23, 2006) (settling the case for $80,000 to be paid by the City of New York); E-mail from Richard
Cardinale, Plaintiff’s Attorney, to author (July 11, 2013, 15:46 PDT) (on file with the New York University
Law Review) (“The officer [in the Ellis case] was indemnified and did not have to pay out of his own
pocket. The city settled the case after their motion was denied to avoid a judgment being entered against
the officer.”); E-mail from Brian Isaac, Plaintiff’s Attorney, to Joel Berger, Plaintiff’s Attorney and
Former N.Y.C. Law Dep’t Exec. (Feb. 28, 2013, 09:15 PST) (on file with the New York University Law
Review) (“It is my understanding that the City paid the punitive damage award [in Ferguson].”); E-mail
from Michael Joseph, Plaintiff’s Attorney, to author (July 11, 2013, 18:00 PDT) (on file with the New York
University Law Review) (“The officer did not contribute [in Manganiello]. Although there is no vicarious
liability under [§] 1983, the officers receive indemnification under their collective bargaining agreement.
The City didn’t settle, they paid after the Second Circuit affirmed the verdict[.]”); E-mail from Michael L.
Spiegel, Plaintiff’s Attorney, to author (Apr. 22, 2013, 16:41 PDT) (on file with the New York University
Law Review) (reporting that, after defendants’ motions were denied in Cameron, the case was settled for a
lump sum during posttrial negotiations over attorneys’ fees). Note that the defendants had outside counsel
in both the Ellis and Matthews cases, but the city nonetheless paid the entirety of the settlement.
Los Angeles Police Department (CA). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Mike Dundas,
Deputy City Attorney, City of L.A., to author (Sept. 17, 2012, 16:19 PDT) (on file with the New York
University Law Review) (including spreadsheet of concluded litigation between 2006 and 2011). I removed
several duplicates based on information from Mr. Dundas. See E-mail from Mike Dundas, Deputy City
Attorney, City of L.A., to author (Mar. 7, 2014, 11:04 PDT) (on file with the New York University Law
Review). I removed several categories of cases from the calculation of civil rights cases, including: (1)
employment, (2) dangerous condition, (3) traffic accident, (4) labor relations, (5) FLSA, and (6) cases
categorized as “miscellaneous” or “other.” For information about indemnification decisions, see E-mail
from Mike Dundas, Deputy City Attorney, City of L.A., to Brian Cardile, Student, UCLA School of Law
(Jan. 25, 2013, 13:52 PST) (on file with the New York University Law Review) (“[T]here was only one
instance where our staff determined that the City declined to indemnify an employee of the LAPD in
litigation. The name of the case was Tesha Taylor-Ewing v. City of Los Angeles . . . .”); E-mail from Mike
Dundas, Deputy City Attorney, City of L.A., to author (Feb. 6, 2013, 10:13 PST) (confirming that the
involved officer in Taylor-Ewing v. City of Los Angeles was only declined indemnification for the punitive
damages judgment). Note, however, that while the city’s records reflect that Taylor-Ewing was awarded
$200 in punitive damages, the judgment entered in the case reflects that the punitive damages judgment

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was $300. I have relied on the $300 figure from the court record in my calculations. See Judgment on the
Verdict for the Plaintiff(s), Taylor-Ewing v. City of Los Angeles, No. 07-CV-05556, 2010 WL 5620883
(C.D. Cal. Nov. 5, 2010). For data about punitive damages awards, see E-mail from Mike Dundas (Feb. 6,
2013), supra (“The only case involving punitive damages is the one case already mentioned, Tesha TaylorEwing v. City of Los Angeles.”).
Los Angeles County Sheriff’s Department (CA). For data about the amount paid to plaintiffs in
police misconduct suits, the number of cases resolved in plaintiffs’ favor, punitive damages awards, and
indemnification decisions, see Letter from Jonathan McCaverty, Senior Deputy Cnty. Counsel, Law
Enforcement Servs. Div., Cnty. of L.A., to author (Sept. 25, 2012) (on file with the New York University
Law Review) (appending “a spreadsheet identifying all Sheriff’s Department lawsuits pertaining to general
police misconduct (excluding medical, automobile and employment cases) from 2006–2011”). I have
removed one case from the data set in which officers were denied indemnification but their challenge to
that denial is still pending. See supra notes 212–16 (describing the Franco case); see also Voicemail from
Jonathan McCaverty, Senior Deputy Cnty. Counsel, Law Enforcement Servs. Div., Cnty. of L.A., to
author (Oct. 2, 2012) (confirming that the county satisfied all punitive damages awards in cases resolved
during the study period) (on file with the New York University Law Review).
California Highway Patrol (CA). For data about the amount paid to plaintiffs in police misconduct
suits, see E-mail from Kim Hunter, Gen. Counsel, Dep’t of the Cal. Highway Patrol, to author (Mar. 5,
2013, 09:21 PST) (on file with the New York University Law Review) (providing information about the
total amount awarded in cases resolved between 2006 and 2011, excluding automobile accidents). For data
about the number of cases resolved in plaintiffs’ favor, see Letter from Kim Hunter, Gen. Counsel, Dep’t
of the Cal. Highway Patrol, to author (July 26, 2012) (on file with the New York University Law Review)
(reporting the total number of cases resolved—by settlement, judgment, or dismissal—between 2006 and
2011 to be 384). To estimate the number of civil rights actions resulting in payments to plaintiffs, I
calculated 20.6% of the 384 total resolved cases during this period—the median percentage of total cases
resolved by settlement, judgment, or dismissal between 2006 and 2011 that involved civil rights cases with
payments to plaintiffs in the jurisdictions that provided detailed data. See Appendix D. For information
about indemnification decisions, see Letter from Kim Hunter, supra.
Although there have been no instances in which a California Highway Patrol (CHP) officer has had
to contribute to a settlement or judgment during this period, there was one suit—resolved in 2012, outside
the study period—in which the department informed the two officer defendants that they would not be
indemnified. Hunter identified the two employees not indemnified as Thomas O’Donnell and Aaron
Reich, Jr. E-mail from Kim Hunter, Gen. Counsel, Cal. Highway Patrol, to author (Mar. 1, 2013, 11:09
PST) (on file with the New York University Law Review). The employees were dispatch officers sued for
publicly disseminating crime scene photographs of a young woman decapitated in a motor vehicle
accident; the two officers were dismissed from the case by the trial court. On appeal the appellate court
upheld the dismissal of the federal claims on qualified immunity grounds but held that the officers could
be sued for state law claims of negligence and intentional infliction of emotional distress. See Catsouras v.
Dep’t of the Cal. Highway Patrol, 104 Cal. Rptr. 3d 352, 358 (Ct. App. 2010). In 2012, CHP settled with the
plaintiff for $2.37 million. See Rick Rojas, CHP Settles over Leaked Photos; The Family of Car Crash
Victim Whose Photos Were Posted Online Receives About 2.37 Million, L.A. TIMES, Jan. 31, 2012, at AA.1.
The plaintiff’s attorney in the case reports that plaintiffs voluntarily withdrew their claims against the
officers before settling with CHP, as the officers did not have assets and had provided deposition
testimony that supported plaintiffs’ claims against CHP. See Telephone Interview with Keith Bremer,
Plaintiff’s Attorney (Oct. 7, 2013).
The one case in which plaintiffs were awarded punitive damages during the study period is Grassilli
v. Barr, 48 Cal. Rptr. 3d 715 (Ct. App. 2006) (affirming jury verdict of $210,000 in economic damages,
$290,000 in noneconomic damages, and reducing punitive damages awards from $1,005,522 against one
defendant and $3,000,000 against another defendant to $35,000 and $20,000, respectively). After the
appellate decision, the parties went into mediation and settled the case for $2 million. E-mail from Kim
Hunter, Gen. Counsel, Dep’t of the Cal. Highway Patrol, to author (Apr. 22, 2013, 15:21 PDT) (on file
with the New York University Law Review). CHP officers did not contribute to that settlement. See Letter
from Kim Hunter, supra.
Cook County Sheriff’s Department (IL). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Jeff Fronczak,
Assistant to Special Legal Counsel, Office of the President, Cook Cnty. Board of Comm’rs, to author
(Apr. 19, 2013, 10:40 PDT) (on file with the New York University Law Review) (providing a spreadsheet
detailing 394 settlements for claims occurring at the Cook County Jail totaling $54,203,318.62 between
2006 and 2011). The spreadsheet does not indicate the types of jail cases, and so may include some medical
malpractice and other non–civil rights cases. To estimate the amount spent in civil rights actions, I
calculated 76.3% of the $54,203,318.62 total paid in jail cases during the study period. See Appendix C. I
estimated the number of jail civil rights cases involving payments to plaintiffs by calculating 52.7% of the
394 total jail cases resolved with payments to plaintiffs during this period—the median percentage of total
cases resolved in plaintiffs’ favor between 2006 and 2011 that involved civil rights claims in the

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jurisdictions that provided detailed data. See Appendix D.
Information about nonjail settlements and judgments involving the Cook County Sheriff’s
Department is available in the Cook County Finance Committee’s reports. Office of the Secretary of the
Board,
COOK
COUNTY
BOARD
OF
COMMISSIONERS,
http://legacy.cookcountygov.com/secretary/committees/Finance/finance.html (last visited Apr. 23, 2014). A
review of these reports from 2006 to 2011 revealed ninety-six additional civil rights cases and $16,744,785
in additional settlements and judgments in which the Sheriff’s Department was clearly identified as the
defendant. An additional thirty-two cases were mentioned in the reports as involving civil rights violations,
but it was not clear whether the Sheriff’s Department was involved. I then searched for these cases on
Westlaw and found nine in which the Sheriff’s Department and/or one of its employees was named as a
defendant, totaling an additional $176,350. I did not include in my calculations those cases I found in my
search of the Cook County Finance Committee Minutes that involved medical malpractice claims, claims
brought by employees of the sheriff’s department, claims of lost property, and motor vehicle claims. For
information about indemnification decisions, see E-mail from Paul A. Castiglione, Exec. Assistant State’s
Attorney for Policy, Cook Cnty., Ill., to author (Apr. 5, 2013, 14:20 PDT) (on file with the New York
University Law Review) (“[I]f a deputy sheriff is acting within the scope of his employment (as Illinois law
defines that principle), then the county will be liable for any judgment or settlement of compensatory
damages entered against that deputy sheriff in a Section 1983 action.”). Cook County did not provide
responsive information about punitive damages awards. A broad Westlaw search of “‘cook county’ /s
sheriff /p punitive!” in all state and federal cases in the Seventh Circuit between 2005 and 2012 revealed no
cases in which punitive damages were awarded.
New York State Police (NY). For data about the amount paid to plaintiffs in police misconduct
suits, the number of cases resolved in plaintiffs’ favor, and indemnification decisions, see Letter from
Glenn R. Miner, Acting Records Access Officer, Cent. Records Bureau, N.Y. State Police, to author (July
24, 2012) (on file with the New York University Law Review) (attaching spreadsheet including the number
of cases that were resolved by settlement, judgment, or dismissal during the period 2006 to 2011 for
officers “acting in their on-duty capacity” and showing that officers were never required to contribute).
Note that the nature of cases could not be determined from the response, and so could include non–civil
rights claims. To estimate the amount spent in civil rights actions, I calculated 76.3% of the $14,956,648.39
total awarded to plaintiffs in this jurisdiction—the median percentage of civil rights payments made in the
jurisdictions that provided detailed data about both civil rights and non–civil rights payments. See
Appendix C. To estimate the number of civil rights actions resulting in payments to plaintiff, I calculated
20.6% of the 510 total resolved cases during this period—the median percentage of total cases resolved by
settlement, judgment, or dismissal between 2006 and 2011 that involved civil rights cases with payments to
plaintiffs in the jurisdictions that provided detailed data. See Appendix D. To estimate the number of all
types of actions resulting in payments to plaintiffs during the study period, I calculated 46.0% of the 510
total cases during the period—the median percentage of total cases resolved with payments to plaintiffs in
jurisdictions that provided detailed data. See id. The New York State Police did not provide responsive
information about punitive damages awards. A broad Westlaw search of “‘new york’ /s police & punitive!”
in all state and federal cases in New York between 2005 and 2012 revealed no cases in which punitive
damages were awarded.
Texas Department of Public Safety (TX). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Michele Freeland,
Legal Assistant, Office of Gen. Counsel, Tex. Dep’t of Pub. Safety, to author (June 26, 2012, 13:25 PDT)
(on file with the New York University Law Review) (attaching spreadsheet of cases resolved between 2006
and 2011). I eliminated motor vehicle, employment, and miscellaneous cases from the calculation of the
total paid in civil rights cases. For data about indemnification decisions, see E-mail from Michele Freeland,
Legal Assistant, Office of Gen. Counsel, Tex. Dep’t of Pub. Safety, to author (June 27, 2012, 06:40 PDT)
(on file with the New York University Law Review) (“None of the settlements were [sic] paid by the
officers individually.”). The Texas Department of Public Safety did not provide responsive information
about punitive damages awards. A broad Westlaw search of “‘department of public safety’ & punitive!” in
all state and federal cases in Texas published between 2005 and 2012 revealed no cases in which punitive
damages were awarded.
Dallas Police Department (TX). Dallas reported that the city fully satisfied settlements and
judgments on behalf of its officers during the study period, but did not collect information about the
amount paid in settlements and judgments. See Letter from Warren M. S. Ernst, Chief of the Gen. Counsel
Div., Office of the City Attorney, City of Dall., to author (June 27, 2012) (on file with the New York
University Law Review). Mr. Ernst suggested that I inspect City Council agendas, which contain
information about settlements approved by the City Council. See Letter from Warren M. S. Ernst, Chief of
the Gen. Counsel Div., Office of the City Attorney, City of Dall., to author (Mar. 14, 2013) (on file with
the New York University Law Review). Accordingly, I reviewed minutes from every meeting held between
2006 and 2011, available at Agendas, Minutes & Digital Audio Recordings, CITY OF DALLAS CITY SEC’Y’S
OFFICE, http://www.ci.dallas.tx.us/cso/cMeetings.html (last visited Mar. 7, 2014); collected information
about all settlements and attorneys’ fees awarded during that period; and then searched for those cases on

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Westlaw to determine whether they involved the police department. I found a total of five cases in the
minutes that I could identify as § 1983 cases involving police officers. A separate search on the Bloomberg
Law database of all case dockets in Texas state and federal court with the words “dallas” and “police”
yielded 365 results; two involved cases against Dallas police officers that were settled but had not been
reported in the City Council minutes. I sought information about both cases from plaintiffs’ attorneys of
record but neither attorney responded to my request for information. For information about punitive
damages awards, see Letter from Warren M. S. Ernst (June 27, 2012), supra.
Phoenix Police Department (AZ). For data about the amount paid to plaintiffs in police
misconduct suits, the number of cases resolved in plaintiffs’ favor, and indemnification decisions, see
Letter from Dane Traines, Risk Mgmt. Coordinator, Risk Mgmt. Div., City of Phx. Fin. Dep’t, to author
(July 6, 2012) (on file with the New York University Law Review). Mr. Traines removed auto collision
cases from his response, but it is possible that other types of non–civil rights claims may have been
included. See also E-mail from Dane Traines, Risk Mgmt. Coordinator, Risk Mgmt. Div., City of Phx. Fin.
Dep’t, to author (June 14, 2012, 14:37 PDT) (on file with the New York University Law Review)
(confirming that vehicle collision cases are not included in the calculation). For information that no officer
paid punitive damages, see Letter from Dane Traines, supra.
New Jersey State Police (NJ). For data about the amount paid to plaintiffs in police misconduct
suits and the number of cases resolved in plaintiffs’ favor, see Letter from Robert Sanguinetti, Div. of Law
Records Custodian, State of N.J., to author (Aug. 1, 2012) (on file with the New York University Law
Review) (containing a spreadsheet of dispositions paid from 2006 to 2011 in cases in which the New Jersey
State Police was named as a defendant). It is possible that individual officers were not named in some of
these suits; it is also possible that individual officers may have been named in some suits not included in
this list (because the State Police was not also named as a defendant). To estimate the amount spent in
civil rights actions, I calculated 76.3% of the $16,031,225.71 total awarded to plaintiffs in this jurisdiction—
the median percentage of civil rights payments made in the jurisdictions that provided detailed data about
both civil rights and non–civil rights payments. See Appendix C. For Appendix B, to estimate the number
of all types of actions resulting in payments to plaintiffs during the study period, I calculated 46.0% of the
309 total cases during the period—the median percentage of total cases resolved with payments to
plaintiffs in jurisdictions that provided detailed data. See Appendix D. To estimate the number of civil
rights actions resulting in payments to plaintiffs, I calculated 20.6% of the 309 total resolved cases during
this period—the median percentage of total cases resolved by settlement, judgment, or dismissal between
2006 and 2011 that involved civil rights cases with payments to plaintiffs in the jurisdictions that provided
detailed data. See Appendix D.
The State of New Jersey did not affirmatively state that it had never declined to indemnify a law
enforcement employee. I was told, however, that the State relies on N.J.S.A. Title 59, the laws addressing
representation and indemnification of state employees. E-mail from Robert Sanguinetti, Div. of Law
Records Custodian, State of N.J., to author (Mar. 6, 2013, 13:08 PST) (on file with the New York
University Law Review). Section 59:10-1 provides that if “the Attorney General provides for the defense of
an employee or former employee, the State shall provide indemnification for the State employee.” N.J.
STAT. ANN. § 59:10-1 (West 2006). Mr. Sanguinetti provided a list of the eight cases during the period 2006
to 2011 in which the state declined to represent an officer. See E-mail from Robert Sanguinetti, supra. Six
of those cases are still pending according to the Bloomberg docket system, and one is a criminal matter.
The last of those cases was a civil action brought by the family of a thirteen-year-old who died at the home
of his friend. The friend’s father, a New Jersey State Trooper, who was at home at the time, was also
named in the complaint. Owens v. Feigin, 925 A.2d 106 (N.J. Super. Ct. App. Div. 2007). Because this case
concerns a trooper’s off-duty activities unrelated to his law enforcement responsibilities, I have excluded it
from the data set.
The New Jersey State Police response to my public records request did not include information
about any instances in which punitive damages were awarded against a New Jersey State Police officer. See
Letter from Robert Sanguinetti, supra. A Westlaw search of “‘state police’ /p punitive!” in state and
federal cases in New Jersey published between 2005 and 2012 revealed one case in which punitive damages
were awarded and affirmed on appeal. See Wade v. Colaner, No. 06-3715-FLW, 2010 WL 5479629 (D.N.J.
Dec. 28, 2010). The jury in this excessive force case awarded the plaintiff $500,000 in compensatory
damages and $4.5 million in punitive damages; the award was reduced to $2 million on appeal. See id. at
*1, *32. The records officer informed me, however, that the case was on appeal when it was settled in 2012,
with the state paying the entirety of the settlement. See E-mail from Robert Sanguinetti, Div. of Law
Records Custodian, State of N.J., to author (May 23, 2013, 10:27 PDT) (on file with the New York
University Law Review). Because this case was still pending at the end of the study period, this punitive
damages judgment is not included in the data set.
Baltimore Police Department (MD). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Christopher R.
Lundy, Assoc. Legal Counsel, Balt. Police Dep’t Legal Affairs Div., to author (Sept. 5, 2012) (on file with
the New York University Law Review) (providing information about the total paid in “civil rights
litigation” between 2006 and 2011). For information about indemnification decisions, see Telephone

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Interview with Christopher R. Lundy, Assoc. Legal Counsel, Balt. Police Dep’t Legal Affairs Div. (Aug.
31, 2012). Baltimore did not provide responsive information about punitive damages awards. Id. A broad
Westlaw search of “Baltimore /s police /p punitive!” in all state and federal cases in Maryland between
2005 and 2012 revealed no cases in which punitive damages were awarded.
Las Vegas Metropolitan Police Department (NV). For data about the amount paid to plaintiffs in
police misconduct suits, the number of cases resolved in plaintiffs’ favor, and indemnification decisions,
see Letter from Charlotte M. Bible, Assistant Gen. Counsel, Las Vegas Metro. Police Dep’t, to author
(Sept. 13, 2012) (on file with the New York University Law Review) (providing reports of cases from 2006
to 2011). Note that the nature of cases cannot be determined from the response, and so may include non–
civil rights claims. To estimate the amount spent in civil rights actions, I calculated 76.3% of the
$6,635,048.39 total awarded to plaintiffs in this jurisdiction—the median percentage of civil rights
payments made in the jurisdictions that provided detailed data about both civil rights and non–civil rights
payments. See Appendix C. Because it is impossible to tell which of the 140 cases with payments to
plaintiffs involved § 1983 claims, I estimated the number of civil rights actions resulting in payments to
plaintiffs by calculating 52.7% of the 140 total cases resolved with payments to plaintiffs during this
period—the median percentage of total cases resolved in plaintiffs’ favor between 2006 and 2011 that
involved civil rights claims in the jurisdictions that provided detailed data. See Appendix D.
Las Vegas stated that there were no cases in which punitive damages were awarded from 2006 to
2011. Letter from Charlotte M. Bible, Assistant Gen. Counsel, Las Vegas Metro. Police Dep’t, to author
(Sept. 13, 2012) (on file with the New York University Law Review). A broad Westlaw search of “‘Las
Vegas’ /s police /p punitive!” in all state and federal cases in Nevada between 2005 and 2012 revealed one
case in which punitive damages were awarded against a Las Vegas Metropolitan police officer. See Tortu
v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1080, 1087 (9th Cir. 2009) (affirming jury verdict of $5000
in punitive damages against Las Vegas Metropolitan police officer). However, after the $175,000 in
compensatory damages and $5000 punitive damages awarded by the jury were affirmed on appeal, see id.,
the case was remanded to the district court. See Docket, Tortu v. Las Vegas Metro. Police Dep’t, 2:03-CV00783-RCJ (D. Nev. June 15, 2009). The defendants settled the case for $400,000 inclusive of attorneys’
fees. Letter from Charlotte M. Bible, supra, at 5 (listing the $400,000 settlement in Tortu).
Massachusetts State Police (MA). For data about the amount paid to plaintiffs in police
misconduct suits, the number of cases resolved in plaintiffs’ favor, punitive damages awards, and
indemnification decisions, see Letter from Sean W. Farrell, Deputy Chief Legal Counsel, Mass. State
Police, to author (Oct. 15, 2012) (on file with the New York University Law Review) (appending
spreadsheet of settlements and judgments in § 1983 cases from 2006 to 2011). During this period, there was
one officer, David Oxner, who was not indemnified for an assault while off-duty. See Maimaron v.
Commonwealth, 865 N.E.2d 1098 (Mass. 2007). The Commonwealth settled with the plaintiff, then in
binding arbitration Oxner was found liable and plaintiff was awarded over $400,000 in damages and
attorneys’ fees. See Defendant-Appellant’s Brief at 3, Maimaron v. Commonwealth, 865 N.E.2d 1098
(Mass. 2007) (No. SJC-09728) (on file with the New York University Law Review). After the arbitration
award, Oxner assigned his right to seek indemnification to Maimaron in exchange for release from the
judgment. See id. Maimaron then sued the Commonwealth to recover the arbitration award and attorneys’
fees. See id. at 4. The Massachusetts Supreme Judicial Court reversed the grant of summary judgment to
Maimaron (as Oxner’s assignee) and remanded for further proceedings because the question of whether
Oxner was acting within the course and scope of his employment and was thus entitled to indemnification
was a triable question of fact. See Maimaron, 865 N.E.2d at 1101. Following remand, the case settled for
$580,000 paid by the Commonwealth. E-mail from Sean W. Farrell, Deputy Chief Legal Counsel, Mass.
State Police, to author (Aug. 26, 2013, 08:47 PDT) (on file with the New York University Law Review).
Boston Police Department (MA). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Susan M. Weise,
First Assistant Corp. Counsel, City of Bos., to author (July 18, 2013) (on file with the New York University
Law Review) (attaching spreadsheet of “City of Boston police misconduct cases” that resulted in
settlements or judgments between 2006 and 2011). For data about indemnification decisions, see
Telephone Interview with Nicole Taub, Office of the Legal Advisor, Bos. Police Dep’t (July 13, 2012)
(reporting that there has not been a case from 2006 to 2011 in which an officer was not indemnified). For
information about punitive damages awards, see id. (reporting that the City’s attorneys estimate that there
has not been a punitive damages verdict against a Boston police officer in over twenty years).
Riverside County Sheriff’s Department (CA). For data about the amount paid to plaintiffs in
police misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Mark
Bostrom, Prof’l Standards Bureau, Riverside Cnty. Sheriff (June 14, 2012) (on file with the New York
University Law Review) (providing responsive data about “civil lawsuits”). Note that the nature of cases
cannot be determined from the response, and so may include non–civil rights claims. To estimate the
amount spent in civil rights actions, I calculated 76.3% of the $12,404,154.68 total awarded to plaintiffs in
this jurisdiction—the median percentage of civil rights payments made in the jurisdictions that provided
detailed data about both civil rights and non–civil rights payments. See Appendix C. Note that the

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response includes all cases resolved by settlement, judgment, or dismissal between 2006 and 2011. To
estimate the number of civil rights actions resulting in payments to plaintiffs during this period, I
calculated 20.6% of the 115 total resolved cases during this period—the median percentage of total cases
resolved by settlement, judgment, or dismissal between 2006 and 2011 that involved civil rights cases with
payments to plaintiffs in the jurisdictions that provided detailed data. See Appendix D. For Appendix B,
to estimate the number of all types of actions resulting in payments to plaintiffs during the study period, I
calculated 46.0% of the 115 total cases resolved during the period—the median percentage of total cases
resolved with payments to plaintiffs in jurisdictions that provided detailed data. See Appendix D. For
information about indemnification decisions, see E-mail from Michael Hatfield, Riverside Sheriff’s Dep’t,
to author (July 11, 2012) (on file with the New York University Law Review) (“I spoke with risk
management and unfortunately learned they do not track any of the information you seek [about the
number of times the department declined to indemnify a sheriff’s deputy]. However, to their knowledge
there has not been a case in which the County refused indemnification.”). For information about punitive
damages awards, see id. (reporting that risk management does not keep track of this information, but
“they are not permitted to pay punitive damages without board approval and do not recall a case in the
time frame [2006–2011] you cited in which that had been done”).
Illinois State Police (IL). For data about the amount paid to plaintiffs in police misconduct suits
and the number of cases resolved in plaintiffs’ favor, see Letter from Steve Lyddon, FOIA Officer, Ill.
State Police, to author (June 19, 2012) (on file with the New York University Law Review) (providing the
total amount spent in settlements and judgments between 2006 and 2011 in all cases in which a member of
the Illinois State Police was sued as a defendant). Note that the nature of cases cannot be determined from
the response, and so may include non–civil rights claims. To estimate the amount spent in civil rights
actions, I calculated 76.3% of the $17,835,874.54 total awarded to plaintiffs in this jurisdiction—the median
percentage of civil rights payments made in the jurisdictions that provided detailed data about both civil
rights and non–civil rights payments. See Appendix C. Lt. Lyddon reported that there were a total of 176
settlements and judgments between 2006 and 2011, but did not indicate which of these cases involved civil
rights claims. I estimated the number of civil rights actions resulting in payments to plaintiffs by calculating
52.7% of the 176 total cases resolved with payments to plaintiffs during this period—the median
percentage of total cases resolved in plaintiffs’ favor between 2006 and 2011 that involved civil rights
claims in the jurisdictions that provided detailed data. See Appendix D.
For information about indemnification decisions, see Telephone Interview with Lisa Freitag, Rules
Coordinator, Legal Office, Ill. State Police (July 12, 2012) (reporting that the Illinois State Police does not
keep information about indemnification decisions but that the Illinois Attorney General agrees to provide
representation and indemnification if, after reviewing the allegations in the complaint, he concludes that
the officer was acting within the course and scope of employment). Freitag could remember only two
situations in which an officer was not indemnified, but did not remember whether they were between 2006
and 2011. In one situation officers were assigned to a drug task force and so were not acting in their
capacity as Illinois State Police officers, and in the other the officer was disciplined for the incident. Id.
The first case is excluded from the dataset because the involved officer was acting under the authority of
another law enforcement agency.
The Illinois State Police did not provide responsive information about punitive damages awards.
See Letter from Steve Lyddon, supra (“[T]he Illinois state police does not track the kind of information
you are requesting.”). A broad Westlaw search of “‘Illinois state police’ /p punitive!” in all state and
federal cases in Illinois between 2005 and 2012 revealed no cases in which punitive damages were awarded.
San Antonio Police Department (TX). For data about the amount paid to plaintiffs in police
misconduct suits, see E-mail from Brandis Davis, Human Res. Dep’t, City of San Antonio, to author (Aug.
20, 2012, 13:38 PDT) (on file with the New York University Law Review). Note that the nature of cases
cannot be determined from the response, and so may include non–civil rights claims. To estimate the
amount spent in civil rights actions, I calculated 76.3% of the $2,181,976.63 total awarded to plaintiffs in
this jurisdiction—the median percentage of civil rights payments made in the jurisdictions that provided
detailed data about both civil rights and non–civil rights payments. See Appendix C. Ms. Davis reported
that there were 103 claims during this period that resulted in a payout and twenty-one cases that did not
result in a payout. I estimated the number of civil rights actions resulting in payments to plaintiffs by
calculating 52.7% of the 103 total cases resolved with payments to plaintiffs during this period—the
median percentage of total cases resolved in plaintiffs’ favor between 2006 and 2011 that involved civil
rights claims in the jurisdictions that provided detailed data. For information about indemnification
decisions, see Telephone Interview with Brandis Davis, Human Res. Dep’t, City of San Antonio (Aug. 31,
2012) (reporting that she believes the payouts were fulfilled entirely by the city); Voicemail from Brandis
Davis, Human Res. Dep’t, City of San Antonio, to Brian Cardile, Student, UCLA School of Law (Sept.
27, 2012) (confirming that there were no payments by officers). The City of San Antonio did not provide
responsive information about punitive damages awards. A broad Westlaw search of “‘san antonio’ /s
police & punitive!” in all state and federal cases in Texas between 2005 and 2012 revealed no cases in
which punitive damages were awarded.
Milwaukee Police Department (WI). For data about the amount paid to plaintiffs in police

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misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Grant F. Langley,
City Attorney, City of Milwaukee, to author (July 30, 2012) (on file with the New York University Law
Review) (including a spreadsheet of excessive force cases, but not cases alleging other types of
constitutional claims). For information about indemnification decisions, see id. at 2 (reporting, after
searching records and asking all the attorneys in the City Attorney’s Office “whether they recall any cases
in which the City did not indemnify a defendant employee” that “[i]t appears that there are three [such]
instances,” each of which is a case that “remains on-going”). The Milwaukee Police Department did not
provide responsive information about punitive damages awards. A broad Westlaw search of “Milwaukee
/s police’ & punitive!” in all state and federal cases in Wisconsin published between 2005 and 2012
revealed no cases in which punitive damages were awarded.
San Francisco Police Department (CA). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Jack Song, Pub.
Info. Officer, S.F. Office of the City Attorney, to author (Oct. 10, 2012) (on file with the New York
University Law Review) (providing a spreadsheet of claims against the San Francisco Police Department
or its employees from 2006 to 2011, including settlement or judgment amounts). I removed claims for
vehicle accidents and claims by employees against the department from the spreadsheet provided. For
information about indemnification decisions, see Telephone Interview with Jack Song, Public Information
Officer, Officer of the City Attorney, (Mar. 5, 2013) (reporting that there are no documents responsive to
the request for information about incidents in which officers were not indemnified, but that they reviewed
cases from 2006 to 2011 in response to our request and they did not identify any cases where the officer or
other employee of the city was not indemnified). San Francisco did not provide responsive information
about punitive damages awards. A broad Westlaw search of “‘San Francisco police’ /p punitive!” in all
state and federal cases in California published between 2005 and 2012 revealed no cases in which punitive
damages were awarded.
Honolulu Police Department (HI). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Mia Obciana,
Deputy Corp. Counsel, City of Honolulu, to author (Dec. 4, 2012, 11:32 PST) (on file with New York
University Law Review) (providing a spreadsheet of lawsuits resolved between 2006 and 2011 in which
Corporation Counsel represented Hawaii police officers, and associated payments). Note that the nature
of cases cannot be determined from the spreadsheet, and so may include non–civil rights claims. To
estimate the amount spent in civil rights actions, I calculated 76.3% of the $1,185,258 total awarded to
plaintiffs in this jurisdiction—the median percentage of civil rights payments made in the jurisdictions that
provided detailed data about both civil rights and non–civil rights payments. See Appendix C. Ms.
Obciana’s spreadsheet indicates that there were a total of thirty-seven settlements and judgments between
2006 and 2011, but did not indicate which of these cases involved civil rights claims. I estimated the
number of civil rights actions resulting in payments to plaintiffs by calculating 52.7% of the thirty-seven
total cases resolved with payments to plaintiffs during this period—the median percentage of total cases
resolved in plaintiffs’ favor between 2006 and 2011 that involved civil rights claims in the jurisdictions that
provided detailed data. See Appendix D. For information about indemnification decisions, see Telephone
Interview with Mia Obciana, Deputy Corp. Counsel, City of Honolulu (Dec. 4, 2012) (reporting that,
based on her discussions with others following up on these requests, if Corporation Counsel represents an
officer it is because the Honolulu Police Commission has found that the officer was acting in the course
and scope of his or her employment, and will not only provide representation but also will satisfy any
settlement or judgment against the officer). The Honolulu Police Commission declined just ten of the 203
requests for officer indemnification that were approved or denied from 2006 to 2011. See Letter from
George P. Ashak, Acting Exec. Officer, City and Cnty. of Honolulu Police Comm’n, to author (July 11,
2012) (on file with the New York University Law Review) (enclosing relevant pages from the
Commission’s annual reports). The current Police Commissioner reports that “the cases in recent history
that were not provided representation all involved way outside the scope of their duties such as DUI while
driving off duty, and domestic violence cases while off duty.” Telephone Interview with Gregory
Gilmartin, Honolulu Police Comm’n. Exec. Dir. (Feb. 25, 2014). The Commissioner additionally offered
that it will “always represent” officers charged with excessive force. Telephone Interview with Gregory
Gilmartin, Honolulu Police Comm’n. Exec. Dir. (Feb. 24, 2014).
The Honolulu Police Department did not provide responsive information about punitive damages
awards. A broad Westlaw search of “Honolulu /s police /p punitive!” in all state and federal cases in
Hawaii published between 2005 and 2012 revealed no cases in which punitive damages were awarded.
Columbus Police Department (OH). For data about the amount paid to plaintiffs in police
misconduct suits, the number of cases resolved in plaintiffs’ favor, punitive damages awards, and
indemnification decisions, see Letter from Glenn B. Redick, Chief Litig. Attorney, City Attorney’s Office,
Columbus, Ohio, to author (June 20, 2012) (on file with the New York University Law Review) (providing
a list of all lawsuits resolved between 2006 and 2011 in which any city employee was named as a
defendant). Thirty-one cases resulted in payments to plaintiffs, see id.; review of the provided docket
numbers on Westlaw and Bloomberg confirmed that there were twelve § 1983 (or other police
misconduct) cases in which Columbus Police officers were named as defendants. The remaining nineteen

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were confirmed not to involve civil right claims or not to involve the police department, or else there was
no additional information about them. The total payments to plaintiffs in the twelve police misconduct
cases was $901,100.
North Carolina State Highway Patrol (NC). For data about the amount paid to plaintiffs in police
misconduct suits, the number of cases resolved in plaintiffs’ favor, and indemnification decisions, see
Letter from Cheryl L. Walker, Program Assistant V, N.C. Dep’t of Pub. Safety, State Highway Patrol, to
author (Sept. 13, 2012) (on file with the New York University Law Review) (including spreadsheet of
lawsuits and outcomes); Telephone Interview with Cheryl L. Walker, Program Assistant V, N.C. Dep’t of
Pub. Safety, N.C. State Highway Patrol (Sept. 27, 2012) (confirming that the $30,000 settlement was the
only payout during the relevant period and that the officer was indemnified); Voicemail from Cheryl L.
Walker, Program Assistant V, N.C. Dep’t of Pub. Safety, N.C. State Highway Patrol, to author (June 3,
2013) (on file with the New York University Law Review) (explaining that, in the case with the $30,000
settlement, the plaintiff alleged that a state trooper stopped him for a traffic violation and “the allegation
was a fight ensued”).
San Bernardino County Sheriff’s Department (CA). For data about the amount paid to plaintiffs in
police misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Steven T.
Robles, Dir. of Risk Mgmt., Dep’t of Risk Mgmt., Cnty. of San Bernardino, Cal., to author (July 26, 2012)
(on file with the New York University Law Review) (attaching spreadsheet of responsive cases). The
spreadsheet, however, does not identify whether these are all civil rights cases. See id. To estimate the
amount spent in civil rights actions, I calculated 76.3% of the $8,077,105.11 total awarded to plaintiffs in
this jurisdiction—the median percentage of civil rights payments made in the jurisdictions that provided
detailed data about both civil rights and non–civil rights payments. See Appendix C. I estimated the
number of civil rights actions resulting in payments to plaintiffs by calculating 52.7% of the sixty-eight
total cases resolved with payments to plaintiffs from 2006 to 2011—the median percentage of total cases
resolved in plaintiffs’ favor during this period that involved civil rights claims in the jurisdictions that
provided detailed data. See Appendix D. For information about indemnification decisions, see Letter from
Steven T. Robles, supra, at 1–2 (stating that “[w]e are aware of no . . . instances” in which an officer was
required to contribute to a settlement or judgment).
San Bernardino did not provide responsive information about punitive damages awards. A
Westlaw search for “‘San Bernardino’ & punitiv!” in all California state and federal cases from 2005 to
2012 produced three cases in which punitive damages were awarded against San Bernardino sheriff’s
deputies. See Mendez v. County of San Bernardino, 540 F.3d 1109, 1116, 1120–23 (9th Cir. 2008) (affirming
the district court’s decision to remit the punitive damage jury verdict from $250,000 to $5000 in a case in
which police officers unlawfully detained the plaintiffs, searched their property with fraudulently obtained
consent, and did not inform them that their family member had been shot and killed); Alvarez v. Iniguez,
No. CV 04-6383 (MLGx), 2008 WL 4382753, at *1 (C.D. Cal. Sept. 5, 2008) (awarding $2000 in punitive
damages and $3000 in compensatory damages for excessive force employed when plaintiff’s penis piercing
was ripped out during strip search by defendants); J.R. v. City of San Bernardino, No. EDCV 05-1045JWJ, 2007 WL 5030309, at *2, *7 (C.D. Cal. Aug. 6, 2007) (upholding jury verdict against officers who
tackled two minor females for use of excessive force in a false arrest), aff’d sub nom. J.R. ex. rel. Dickson
v. City of San Bernardino, 374 F. App’x 755 (9th Cir. 2010); Docket at 94, J.R. v. City of San Bernardino,
No. EDCV 05-1045-JWJ, 2007 WL 5030309 (C.D. Cal. Aug. 6, 2007) (No. 5:05-CV-01045) (reflecting a
jury award of $12,500 total in punitive damages and $3500 total in compensatory damages).
Orange County Sheriff’s Department (CA). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Laurie A. Shade,
Senior Deputy, Office of the Orange Cnty. Counsel, to author (July 18, 2012, 16:46 PDT) (on file with the
New York University Law Review) (attaching spreadsheet of settlements and judgments paid between
2006 and 2011); Letter from Laurie A. Shade, Senior Deputy, Office of the Orange Cnty. Counsel, to
author (July 9, 2012) (on file with the New York University Law Review) (describing the aforementioned
spreadsheet). There were no motor vehicle accidents or employment actions listed on the spreadsheet, and
I excluded the one “slip and fall” case reported during that period. For information about indemnification
decisions, see Letter from Laurie A. Shade, Senior Deputy, Office of the Orange Cnty. Counsel, to author,
at 1 (July 3, 2012) (on file with the New York University Law Review) (“[T]here have been no instances
where the County has declined to indemnify a defendant employee in the Sheriff’s Department . . . .”).
Orange County did not provide responsive information about punitive damages awards. See Letter from
Laurie A. Shade (July 9, 2012), supra, at 1 (“Risk Management’s database does not . . . specify whether the
damages paid were compensatory or punitive.”). A broad Westlaw search of “‘Orange County sheriff’ /p
punitive!” in all state and federal cases in California published between 2005 and 2012 revealed no cases in
which punitive damages were awarded.
Michigan State Police (MI). For data about the amount paid to plaintiffs in police misconduct suits
and the number of cases resolved in plaintiffs’ favor, see Letter from Judy Fox, Assistant FOIA
Coordinator, Mich. State Police, to author (Aug. 28, 2012) (on file with the New York University Law
Review) (attaching spreadsheet of responsive cases). I omitted cases involving freedom of information act

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requests, internal employment actions, and automobile collisions from the calculations of civil rights
claims. For information about indemnification decisions, see Telephone Interview with Judy Fox,
Assistant FOIA Coordinator, Michigan State Police, (Sept. 4, 2012) (explaining that the Michigan State
Police did not decline to indemnify an employee during the period 2006–2011). The Michigan State Police
did not provide responsive information about punitive damages awards. A broad Westlaw search of
“‘Michigan state police’ /p punitive!” in all state and federal cases in Michigan between 2005 and 2012
revealed no cases in which punitive damages were awarded.
Atlanta Police Department (GA). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Kristen Denius,
Assistant City Attorney, City of Atlanta, to Brian Cardile, Student, UCLA School of Law (Feb. 1, 2013,
13:20 PST) (on file with the New York University Law Review) (attaching spreadsheet of lawsuits from
2008 through 2012). I removed all cases that were not police department cases, and all police department
cases except those designated “civil rights violation[s]” when determining the total of civil rights cases. See
id. Note, however, that this spreadsheet reflects settlements and judgments from 2008 to 2011. The City of
Atlanta does not have information about settlements and judgments prior to 2008. See id. Atlanta
reported paying $6,977,448 for nineteen civil rights violations between January 2008 and December 2011;
$1,744,362 in 4.75 cases per year. Based on this data, I estimated that Atlanta would have paid $3,488,724
in 2006 and 2007 in civil rights violations, and a total of $10,466,172 in twenty-nine cases between 2006 and
2011. The total spent by Atlanta for all cases during the period 2008–2011 was $8,717,306.57 in 287 cases.
Based on the same types of calculations, the estimated total spent by Atlanta for all types of police claims
would be $13,075,959.86 in 431 cases between 2006 and 2011. For information about indemnification
decisions, see id. (“I am not aware of any circumstances in the period covered by this report in which
individual officers contributed to any payment of claims or damage awards.”). Atlanta did not provide
responsive information about punitive damages awards. A broad Westlaw search of “Atlanta /s police /p
punitive!” in all state and federal cases in Georgia between 2005 and 2012 revealed no cases in which
punitive damages were awarded.
Charlotte-Mecklenburg Police Department (NC). For data about the amount paid to plaintiffs in
police misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Charles
Freiman, Police Paralegal, Police Attorney’s Office, Charlotte-Mecklenburg Police Dep’t, to author (Feb.
25, 2013, 07:48 PST) (attaching spreadsheets of lawsuits against the Department). I removed cases
involving motor vehicle accidents and employment disputes. Two cases on the spreadsheet were
categorized as “procedural error,” id. at 1. I e-mailed the department to find out more information about
these cases, but received no response. Because I found a newspaper story indicating that one of the two
cases involved a shooting by police, I counted both cases as civil rights cases. See Police Stand by Their
Decision to Shoot Suspected Drug Dealer in East Charlotte, WSOCTV.COM (May 7, 2008, 5:38 PM),
http://www.wsoctv.com/news/news/police-stand-by-decision-to-shoot-suspected-drug-d/nGzFk/ (describing
the shooting of Brian Howie in 2008). Howie was paid $173,540.67 by Charlotte-Mecklenburg for a suit
that presumably resulted from the shooting. See E-mail from Charles Freiman, supra. For information
about indemnification decisions, see E-mail from Judy Emken, Senior Assistant City Attorney, CharlotteMecklenburg Police Dep’t (Feb. 25, 2013, 10:37 PST) (“I have checked with the City’s Division of Risk
Management, and we are not aware of any matter where indemnification did not occur . . . .”). For
information about punitive damages awards, see id. (reporting that there have not been any punitive
damages assessed during the time period).
Jacksonville Sheriff’s Office (FL). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Howard M. Maltz,
Chief Deputy Gen. Counsel, City of Jacksonville, to author (July 23, 2012, 07:05 PDT) (on file with the
New York University Law Review) (attaching a list of “civil rights” cases resolved between 2005 and 2012;
cases before 2006 or after 2011 were removed). For information about indemnification decisions, see
Telephone Interview with Howard M. Maltz, Chief Deputy Gen. Counsel, City of Jacksonville (July 10,
2012) (recalling a use-of-force case resolved within the last ten years in which the officer paid between
$5000 and $20,000, but remembering no details of the case beyond the fact that the defendant had financial
resources from a family business used to pay the contribution). Jacksonville did not provide responsive
information about punitive damages awards. A broad Westlaw search of “Jacksonville /s sheriff &
punitive!” in all state and federal cases in Florida between 2005 and 2012 revealed no cases in which
punitive damages were awarded.
Broward County Sheriff’s Office (FL). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Lee Futch, Sworn
Assistant Gen. Counsel, Office of the Gen. Counsel, Broward Cnty. Sheriff’s Office, to author (June 12,
2013) (on file with the New York University Law Review) (providing a spreadsheet of cases closed
between 2006 and 2011). I removed auto liability, medical malpractice, and miscellaneous cases from the
dataset. For information about indemnification decisions, see E-mail from John Greene, Claims Manager,
Risk Mgmt. Div., Broward Cnty. Sheriff’s Office, to author (June 17, 2013, 10:02 PDT) (on file with the
New York University Law Review) (“To the best of my knowledge and our database, no deputies have

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contributed financially to a settlement.”). Broward County did not provide responsive information about
punitive damages awards. A broad Westlaw search of “Broward /p punitive!” in all state and federal cases
in Georgia between 2005 and 2012 revealed no cases in which punitive damages were awarded against a
Broward County sheriff’s deputy.
Cleveland Police Department (OH). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Thomas J. Kaiser,
Chief Trial Counsel, Dep’t of Law, City of Cleveland, to author (July 25, 2012) (on file with the New York
University Law Review) (attaching spreadsheets of judgments and settlements against the City). See also
E-mail from Thomas J. Kaiser, Chief Trial Counsel, Dep’t of Law, City of Cleveland, to author (Sept. 24,
2013, 12:27 PDT) (on file with the New York University Law Review) (providing a corrected spreadsheet
for 2006). Kaiser provided spreadsheets of settlements and judgments paid for all city agencies; I removed
all claims not categorized as “safety.” I then sought out information about these sixty-nine “safety” cases
to confirm that these cases concern the police department, not other safety entities. I was able to confirm
that one case involved a city firefighter and two cases involved city corrections officers, and so excluded
them from the dataset. It is, however, possible that there are additional cases included in the “safety”
categorization that concern nonpolice city employees. In addition, other cases may be missing. I manually
added to the dataset one case, Spratt v. City of Cleveland, that was mentioned by Kaiser in his letter but
absent from his attached spreadsheets.
The spreadsheets also do not indicate the nature of the claims in these cases and so could include
non–civil rights cases. To estimate the amount spent in civil rights actions, I calculated 76.3% of the
$4,504,919.88 total awarded to plaintiffs in the sixty-seven “safety” cases that did not clearly involve
nonpolice employees—the median percentage of civil rights payments made in the jurisdictions that
provided detailed data about both civil rights and non–civil rights payments. See Appendix C (calculating
the median). I then added $37,000 to this total (the amount contributed by officers in two settlements
described below) in Appendix A to reflect the total amount that plaintiffs received during this period.
Because it is impossible to tell which cases with payments to plaintiffs involved § 1983 claims, I estimated
the number of civil rights actions resulting in payments to plaintiffs by calculating 52.7% of the sixty-seven
total cases resolved with payments to plaintiffs during this period—the median percentage of total cases
resolved in plaintiffs’ favor between 2006 and 2011 that involved civil rights claims in the jurisdictions that
provided detailed data. See Appendix D.
For information about indemnification decisions, see Letter from Thomas J. Kaiser, Chief Trial
Counsel, Dep’t of Law, City of Cleveland, to author, supra at 1. Kaiser identified two officers who were
required to contribute to settlements. In one case, Spratt v. Cleveland, the plaintiff alleged that officers
beat him after a police chase. Plaintiff’s First Amended Complaint at 1–2, Spratt v. City of Cleveland, 08cv-2237 (N.D. Ohio, Feb. 24, 2009). One defendant agreed to pay approximately $25,000 to the settlement
in this case. Id. at 1. In a second case, an off-duty officer who worked security for a housing complex shot
and killed someone; he agreed that money he was owed by the housing complex could be paid to the
estate to resolve the wrongful death case. See id. at 1; Voicemail from Thomas J. Kaiser to author (May 31,
2013) (reporting that the city attorney who handled the case believes the officer assigned $12,000 that he
was owed). Kaiser described two additional cases that do not fall within the data set—one case involved
jail guards not employed by the Cleveland Police Department and one case is still pending. Letter from
Thomas J. Kaiser, supra, at 1.
For information about punitive damages awards, see Telephone Interview with Thomas J. Kaiser
(June 18, 2012) (reporting that there are no documents responsive to this request but he has been at the
City Attorney’s Office for the period in question and based on his and others’ recollections, there has been
no award of punitive damages in the years 2006–2011).
Florida Highway Patrol (FL). For data about the amount paid to plaintiffs in police misconduct
suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Judson M. Chapman, Senior
Assistant Gen. Counsel, Fla. Dep’t of Highway Safety & Motor Vehicles, to author (June 29, 2012, 14:08
PDT) (on file with the New York University Law Review) (attaching list of cases resolved between 2006
and 2011, but not indicating the types of cases resolved). To estimate the amount spent in civil rights
actions, I calculated 76.3% of the $386,736.30 total awarded to plaintiffs in this jurisdiction—the median
percentage of civil rights payments made in the jurisdictions that provided detailed data about both civil
rights and non–civil rights payments. See Appendix C. Mr. Chapman’s spreadsheet indicates that fifteen
cases resolved between 2006 and 2011 resulted in payments to plaintiffs, but the spreadsheet does not
indicate which of the cases involved civil rights claims. I estimated the number of civil rights actions
resulting in payments to plaintiffs by calculating 52.7% of the fifteen total cases resolved with payments to
plaintiffs during this period—the median percentage of total cases resolved in plaintiffs’ favor between
2006 and 2011 that involved civil rights claims in the jurisdictions that provided detailed data. See
Appendix D. For information about indemnification decisions, see E-mail from Wanda E. Brazell, Admin.
Assistant, Fla. Dep’t of Fin. Serv., to author (Aug. 22, 2012, 13:50 PDT) (on file with the New York
University Law Review) (“We are not aware of any situation in these cases where we declined to
indemnify a DHSMV employee.”); E-mail from Judson M. Chapman, supra (on file with the New York
University Law Review) (“I have been an attorney here for over 33 years and I am not aware of a single
instance in which the State, through DFS/Risk Management has declined coverage of a Trooper.”). For

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information about punitive damages awards, see E-mail from Wanda E. Brazell, Admin. Assistant, Fla.
Dep’t of Fin. Servs., to author (Aug. 24, 2012, 13:29 PDT) (on file with the New York University Law
Review) (forwarding E-mail from Ray Williams, Chief of State Liability and Property Claims, confirming
there were no jury verdicts between 2006 and 2011).
Prince George’s County Police Department (MD). For data about the amount paid to plaintiffs in
police misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Jamar B.
Herry, Assoc. Cnty. Attorney, Office of Law, Prince George’s Cnty. Gov’t (Sept. 25, 2012) (on file with
the New York University Law Review) (providing a spreadsheet of cases resolved between 2006 and 2011).
There are two case categories on the spreadsheet—“vehicle liability” and “professional liability”—and I
removed “vehicle liability” claims for the calculation of civil rights cases. For information about
indemnification decisions, see Letter from Jamar B. Herry, Assoc. Cnty. Attorney, Office of Law, Prince
George’s Cnty. Gov’t (Sept. 12, 2012) (on file with the New York University Law Review) (“From
institutional memory, there are no instances from the time period of 2006 to 2011 that an officer was not
indemnified.”).
For information about punitive damages awards, see Telephone Interview with Jamar B. Herry,
Assoc. Cnty. Attorney, Prince George’s Cnty. Gov’t, Office of Law (Aug. 7, 2012) (reporting that their
office does not distinguish, in its records, between punitive damages awards and compensatory damages
awards). A broad Westlaw search of “‘prince george’s’ /s police /p punitive!” in all state and federal cases
in Maryland published between 2005 and 2012 revealed one case in which punitive damages were awarded
and affirmed. See Prince George’s Cnty. v. Longtin, 988 A.2d 20, 48 (Md. App. 2010) (affirming $50,000
punitive damages judgment against an individual defendant and $5,025,000 in compensatory damages
judgment against the county). Prince George’s County indemnified the officer. See E-mail from Jamar B.
Herry, Assoc. Cnty. Attorney, Prince George’s Cnty. Police Dep’t, to author (May 9, 2013, 06:36 PDT) (on
file with the New York University Law Review) (“In response to your MPIA request listed below, Prince
George’s County did indemnify the officer in Prince George’s County Maryland v. Longtin, 190 Md. App.
97 (2010).”).
Denver Police Department (CO). For data about the amount paid to plaintiffs in police misconduct
suits and the number of cases resolved in plaintiffs’ favor, see E-mail from David V. Cooke, Denver Dep’t
of Law, to author (Oct. 9, 2012, 16:02 PDT) (on file with the New York University Law Review) (providing
a total of settlements and judgments paid between September 2008 and December 2011); E-mail from
David V. Cooke, Denver Dep’t of Law, to author (Oct. 9, 2012, 19:54 PDT) (confirming that the
settlement and judgment total concerned only cases resolved between September 2008 and December
2011); E-mail from David V. Cooke, Denver Dep’t of Law, to author (Oct. 11, 2012, 13:21 PDT) (stating
that the Department did not have information about settlements and judgments paid before September
2008). Denver reported paying $2,353,283.14 in settlements and judgments between September 2008 and
December 2011, approximately $58,832.07 per month. Based on this data, I estimated that Denver would
have paid $1,882,624.51 in the thirty-two months from January 2006 to September 2008. Based on this
estimate the total spent by Denver would be $4,235,909.65. Note that the nature of cases cannot be
determined from the response, and so may include non–civil rights claims. To estimate the amount spent
in civil rights actions, I calculated 76.3% of the $4,235,909.65 estimated to have been awarded to plaintiffs
in this jurisdiction—the median percentage of all payments that were civil rights payments made during
the study period. See Appendix C. Mr. Cooke’s response indicates that there were 189 cases between 2006
and 2011 resolved by settlement, judgment, or dismissal. E-mail from David V. Cooke, Denver Dep’t of
Law, to author (Oct. 5, 2012, 14:54 PDT) (on file with the New York University Law Review). To estimate
the number of civil rights actions resulting in payments to plaintiffs during this period, I calculated 20.6%
of the 189 total resolved cases during this period—the median percentage of total cases resolved by
settlement, judgment, or dismissal between 2006 and 2011 that involved civil rights cases with payments to
plaintiffs in the jurisdictions that provided detailed data. See Appendix D. For Appendix B, to estimate
the number of all types of actions resulting in payments to plaintiffs during the study period, I calculated
46.0% of the 189 total cases during the period—the median percentage of total cases resolved with
payments to plaintiffs in jurisdictions that provided detailed data. See Appendix D. For information about
indemnification decisions, see E-mail from David V. Cooke (Oct. 9, 2012, 19:54 PDT), supra (responding
that it is his understanding that officers were indemnified for all the settlements and judgments paid
between September 2008 and December 2011). For information about punitive damages awards, see Email from David V. Cooke (Oct. 5, 2012, 14:54 PDT), supra (reporting that punitive damages were not
awarded against individual officers during the study period).
Austin Police Department (TX). For data about the amount paid to plaintiffs in police misconduct
suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Meghan Riley, Div. Chief,
Litig., City of Austin, Tex., to author (July 26, 2012, 10:08 PDT) (on file with the New York University Law
Review) (providing a list of “solely civil rights cases involving either the City or the City and individual
officers”). I removed two cases where I learned that the noted settlement dollars were actually dollars
collected by the city. E-mail from Meghan Riley, Div. Chief, Litig., City of Austin, Tex., to author (Mar.
14, 2014, 09:54 PDT) (on file with the New York University Law Review). For information about all types
of cases involving Austin Police officers resolved between 2006 and 2011, see E-mail from Nelly M.

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Soriano, Paralegal, City of Austin Law Dep’t (June 27, 2012, 13:21 PDT) (providing a list of all cases
involving city police officers). For information about indemnification decisions, see E-mail from Meghan
Riley (July 26, 2012, 10:08 PDT), supra (“Any settlement amounts identified were paid by the City.”); Email from Meghan Riley, supra (“[T]here were no employee contributions to satisfy judgments or
settlements . . . .”). Ms. Riley identified one case resolved during this period in which an individual officer
was not provided representation; she does not know “what happened to the claims against the individual
officer.” Id. My calls to the plaintiffs’ counsel and the defendant officer’s counsel went unreturned. For
information about punitive damages awards, see E-mail from Meghan Riley (July 26, 2012, 10:08 PDT),
supra (attaching a spreadsheet of cases, none of which included jury awards to plaintiffs, from 2006 to
2011).
Fort Worth Police Department (TX). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Cherl K. Byles,
Assist. City Attorney, City of Fort Worth (June 26, 2012) (on file with the New York University Law
Review) (providing spreadsheet of cases resolved between 2006 and 2011). I removed cases involving
motor vehicle accidents. Because all payments were the result of settlements, there could have been no
punitive damages awards. For information about indemnification decisions, see id. Ms. Byles reported that
the “only occurrence during the applicable time period where the City declined to indemnify an
employee” is still pending. Id. The officer in question was sued for driving the plaintiffs to remote
locations in his patrol car and sexually assaulting them. See Davidson v. City of Fort Worth, No. 4:11-CV713-A, 2012 WL 3778832 (N.D. Tex. Aug. 30, 2012) (granting motion for summary judgment in favor of
the City).
Kansas City Police Department (MO). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Jamie L. Cook,
Assoc. Gen. Counsel, Kan. City, Mo., Police Dep’t (June 27, 2012) (on file with the New York University
Law Review) (providing a list of cases resolved between 2006 and 2011 and the amount paid). Note that
the nature of cases cannot be determined from the response, and so may include non–civil rights claims.
To estimate the amount spent in civil rights actions, I calculated 76.3% of the $3,481,609.25 total awarded
to plaintiffs in this jurisdiction—the median percentage of civil rights payments made in the jurisdictions
that provided detailed data about both civil rights and non–civil rights payments. See Appendix C. Mr.
Cook’s response reports that a total of seventy-four cases in which Kansas City officers were named as
defendants were closed through settlement, judgment, or dismissal between 2006 and 2011. To estimate
the number of civil rights actions resulting in payments to plaintiffs during this period, I calculated 20.6%
of the seventy-four total resolved cases during this period—the median percentage of total cases resolved
by settlement, judgment, or dismissal between 2006 and 2011 that involved civil rights cases with payments
to plaintiffs in the jurisdictions that provided detailed data. See Appendix D. For Appendix B, to estimate
the number of all types of cases resulting in payment to plaintiff, I calculated 46.0% of the seventy-four
total cases resolved during this period—the median percentage of total cases resolved that involved
payments to plaintiffs in the jurisdictions that provided detailed data. See Appendix D. For information
about indemnification decisions, see E-mail from Jamie L. Cook, Assoc. Gen. Counsel, Kan. City, Mo.,
Police Dep’t, to author (Mar. 6, 2014, 12:58 PST) (“To the best of our knowledge, no officers financially
contributed to settlements or payments of judgments in the past 5 years.”); E-mail from Jamie L. Cook,
Assoc. Gen. Counsel, Kan. City, Mo., Police Dep’t, to author (Mar. 6, 2014, 13:07 PST) (“To the best of
our knowledge, the same is true for 2006–2009.”).
The Kansas City Police Department did not provide responsive information about punitive
damages awards. A broad Westlaw search of “‘Kansas City’ /s police /p punitive!” in all state and federal
cases in Missouri between 2005 and 2012 revealed no cases in which punitive damages were awarded.
San Jose Police Department (CA). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Lisa Herrick,
Senior Deputy City Attorney, Office of the City Attorney, City of San Jose, to author (June 14, 2012, 16:57
PDT) (on file with the New York University Law Review) (attaching spreadsheets of cases resolved
between 2006 and 2011, with motor vehicle accident cases highlighted). I consolidated spreadsheet entries
for the same parties that appeared to reflect the same cases, to avoid overcounting cases. For information
about indemnification decisions and punitive damages awards, see E-mail from Lisa Herrick, Senior
Deputy City Attorney, Office of the City Attorney, City of San Jose, to author (Dec. 20, 2011, 09:00 PST)
(on file with the New York University Law Review) (“The City does not have any cases responsive to your
request numbers 3, 4, and 5.”).
Seattle Police Department (WA). For data about the number of police misconduct cases resolved
in plaintiffs’ favor between 2006 and 2011, see Letter from Peter S. Holmes, Seattle City Attorney, to
author (Aug. 16, 2012) (on file with the New York University Law Review). For data about the amount
paid to plaintiffs in police misconduct suits, see Letter from Peter S. Holmes, Seattle City Attorney, to
author (July 31, 2012) (on file with the New York University Law Review) (attaching responses that
exclude “negligence” and “employment” cases). I included a $1.5 million settlement identified by Mr.
Holmes that occurred in 2011 before a lawsuit was actually filed. See id. For information about

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indemnification decisions, see Letter from Peter S. Holmes, Seattle City Attorney, to author (July 3, 2012)
(on file with the New York University Law Review) (“[T]here are no cases where the City of Seattle has
declined to indemnify a defendant employee of the Seattle Police Department for compensatory damages
or punitive damages.”). The Seattle Police Department did not provide responsive information about
punitive damages awards. A broad Westlaw search of “seattle /s police & punitive!” in all state and federal
cases in Washington published between 2005 and 2012 revealed no cases in which punitive damages were
awarded.
Montgomery County Police Department (MD). For data about the amount paid to plaintiffs in
police misconduct suits, the number of cases resolved in plaintiffs’ favor, and indemnification decisions,
see Letter from Patricia P. Via, Chief, Litig. Div.—Self Insurance, Office of the Cnty. Attorney,
Montgomery Cnty., to author (July 13, 2012) (on file with the New York University Law Review)
(providing detailed list of cases closed between 2006 and 2011 and reporting that there were no cases in
which an officer was denied indemnification). I removed motor vehicle accidents—the only non–civil
rights claims with payments to plaintiffs reported during the study period—to identify the subset of civil
rights claims. For information about punitive damages awards, see id. at 2 (reporting that there was one
punitive damages judgment during this period, but that it is currently on appeal).
El Paso Police Department (TX). For data about the amount paid to plaintiffs in police misconduct
suits and the number of cases resolved in plaintiffs’ favor, see Letter from Laura P. Gordon, Deputy City
Attorney, City of El Paso, to author (July 5, 2012) (on file with the New York University Law Review)
(attaching spreadsheet of “civil rights” cases resolved against police officers). For information about
indemnification decisions, see Telephone Interview with Laura P. Gordon, Deputy City Attorney, City of
El Paso (July 5, 2012). There was one instance in recent memory in which a jury entered a judgment on
behalf of a plaintiff and the officer contributed $2500–$3000 to satisfy part of the judgment, but this case
did not occur between 2006 and 2011, as there was no judgment entered during the study period. See id. El
Paso did not provide responsive information about punitive damages awards. A broad Westlaw search of
“‘el paso’ /s police /p punitive!” in state and federal courts in Texas published between 2005 and 2012
identified no cases in which punitive damages were awarded against El Paso police officers.
Miami Police Department (FL). For data about the amount paid to plaintiffs in police misconduct
suits and the number of cases resolved in plaintiffs’ favor, see Letter from Julie O. Bru, City Attorney,
City of Miami, to author (Apr. 15, 2013) (on file with the New York University Law Review) (providing a
spreadsheet of lawsuits closed between January 1, 2006 and December 31, 2011). Note that, in calculating
the total settlements and judgments, I counted only cases designated as “civil rights” cases and excluded
those designated as “torts” cases. These were the only two case-type designations on the spreadsheet. For
information about indemnification decisions, see Letter from Julie O. Bru, City Attorney, City of Miami,
to author (June 5, 2013) (on file with the New York University Law Review) (reporting that—in response
to my letter requesting indemnification information about the twenty-seven civil rights cases with
payments to plaintiffs between 2006 and 2011, and suggesting that Ms. Bru ask the four attorneys who
represented defendants in these cases whether they recalled any instance in which an officer was denied
indemnification or financially contributed to settlements—the four attorneys “do not recall any on this
list”). Miami did not provide responsive information about punitive damages awards. A broad Westlaw
search of “miami /s police & punitive!” in all state and federal cases in Florida published between 2005 and
2012 revealed no cases in which punitive damages were awarded against Miami police officers.
Oklahoma City Police Department (OK). For data about the amount paid to plaintiffs in police
misconduct suits, the number of cases resolved in plaintiffs’ favor, and indemnification decisions, see
Letter from Richard C. Smith, Litig. Div. Head, Office of Mun. Counsel, City of Okla., to author (June 21,
2012) (on file with the New York University Law Review); E-mail from Richard C. Smith, Litig. Div. Head,
Office of Mun. Counsel, City of Okla., to author (July 17, 2012, 05:58 PDT) (on file with the New York
University Law Review). Smith reported a total of $4,207,250 in settlements and judgments paid during the
period 2006–2011 for the ten cases involving “police misconduct” litigation, but noted that $4 million—the
vast majority paid—was paid in a single case of wrongful conviction and false imprisonment based on
improper conduct by the city’s forensic chemist, not a police officer. E-mail from Richard C. Smith, supra;
Letter from Richard C. Smith, supra. The city declined to indemnify the chemist, but did pay over $23,000
of her attorneys’ fees. See Letter from Richard C. Smith, supra (identifying the ten cases as “police
misconduct” cases). Because it does not involve an Oklahoma police officer, I have not counted the $4
million judgment. For information about punitive damages cases and indemnification of punitive damage
awards, see id.
Albuquerque Police Department (NM). For data about the amount paid to plaintiffs in police
misconduct suits, the number of cases resolved in plaintiffs’ favor, and indemnification decisions, see
Letter from Roberta Duran, Fiscal Officer, Legal Dep’t Records Custodian, Office of the City Attorney,
City of Albuquerque, to author (July 2, 2012) (on file with the New York University Law Review)
(appending spreadsheet of cases closed between 2001 and 2011). I excluded cases resolved before 2006.
For those cases that were not clearly civil rights cases on the basis of the limited description provided in
the spreadsheet, I attempted to retrieve dockets, court documents, and press accounts to determine the

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nature of the claims. I excluded from the civil rights data set all cases that clearly did not involve civil
rights claims and those cases about which I could find no conclusive information. For information about
indemnification decisions, see Telephone Interview with Kathryn Levy, Deputy City Attorney, Office of
the City Attorney, City of Albuquerque (June 13, 2013) (confirming that no police officer contributed to a
settlement or judgment between 2006 and 2011).
Albuquerque did not provide responsive information about punitive damages awards. A Westlaw
search of “Albuquerque /s police & punitiv!” in New Mexico state and federal courts published between
2005 and 2012 revealed one instance in which punitive damages were awarded. See Seeley v. Chase, 443
F.3d 1290, 1291 (10th Cir. 2006) (describing a case in which the plaintiff filed a § 1983 action for sexual
assault against the defendant officer and received a jury verdict of $69,880 in compensatory damages and
$873,500 in punitive damages). The appellate court remanded the case to the district court for a more
articulated ruling under Federal Rule of Evidence Rule 403. Id. at 1297. The docket indicates that the
issue was decided on remand on May 1, 2006; an appeal was dismissed on August 25, 2006; and the case
was dismissed with prejudice (presumably following settlement) on September 29, 2006. Docket, Seeley v.
Chase, No. 1:04-CV-00118 (Nov. 18, 2008). The spreadsheet provided by the Office of the City Attorney
indicates that $1 million was paid to the plaintiff on August 31, 2006. Letter from Roberta Duran, supra, at
4 (showing payments of $460,000 and $540,000 on August 31, 2006). The City Attorney’s Office confirms
that no officers contributed to settlements or judgments during the time period. Telephone Interview with
Kathryn Levy, supra.
Tampa Police Department (FL). For data about the amount paid to plaintiffs in police misconduct
suits and the number of cases resolved in plaintiffs’ favor, see Letter from Ursula D. Richardson, Assistant
City Attorney, City of Tampa, to author (Nov. 13, 2012) (on file with the New York University Law
Review) (providing a list of cases resolved between 2000 and 2012). Ms. Richardson included cases that
were resolved before 2006 and after 2011, and cases involving motor vehicle accidents; I removed these
cases from the dataset. She also did not provide the dates that two motor vehicle accident cases were
resolved. I have included them in the calculation of total payouts, although it is possible that they were
resolved outside the study period. For information about indemnification decisions, see Telephone
Interview with Ursula D. Richardson, Assistant City Attorney, City of Tampa (July 31, 2012) (reporting
that she has worked in the City Attorney’s Office for eight years and has been responsible for police cases,
and that they have not refused to indemnify an officer for a settlement or judgment during that period,
except in an instance in which an officer fell asleep while driving home from work and hit another car).
For information about punitive damages awards, see Letter from Ursula D. Richardson, Assistant City
Attorney, City of Tampa, to author (July 30, 2012) (on file with the New York University Law Review)
(“[T]o the best of my knowledge there have been no punitive damage awards against a Tampa Police
Department employee from 2006–2011.”).

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APPENDIX J: SOURCE TABLE FOR LARGER JURISDICTIONS THAT
DID NOT PROVIDE RESPONSIVE INFORMATION
The following describes the data sources for information about the
twenty-six jurisdictions in the study that did not provide responsive information about both payouts and indemnification decisions, organized from
largest to smallest jurisdiction measured by full-time sworn personnel,
according to BJS LAW ENFORCEMENT CENSUS DATA, supra note 82.
Chicago Police Department (IL). For data about the amount paid to plaintiffs in police misconduct
suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Roderick Drew, Freedom of
Info. Officer, City of Chi. Law Dep’t, to author (July 27, 2012, 12:47 PDT) (on file with the New York
University Law Review) (providing a spreadsheet of settlements and judgments from 2006 and 2007, and
referencing settlements and judgments posted by the Law Department from 2008 to 2011), available at
http://www.cityofchicago.org/city/en/depts/dol.html. Note that I removed cases involving motor vehicle
incidents, malicious prosecution, and false conviction claims to identify the subset of civil rights claims.
Chicago did not provide indemnification information. See E-mail from Roderick Drew, Freedom of Info.
Officer, City of Chi. Law Dep’t, to author (Sept. 18, 2012, 10:47 PDT) (on file with the New York
University Law Review) (stating that “[t]he only way we would know”whether an officer was indemnified
“is to review cases individually, which we couldn’t do”); E-mail from Roderick Drew, Freedom of Info.
Officer, City of Chi. Law Dep’t, to author (Sept. 18, 2012, 11:10 PDT) (on file with the New York
University Law Review) (reporting that he did not “know of any” instances in which an officer was denied
indemnification for acts in the course and scope of his employment “off hand”); see also Steve Mills, Police
Officers Sometimes Must Pay Too, CHICAGO TRIBUNE, Apr. 15, 2012, at 1.4 (citing Roderick Drew as
stating that settlements requiring officers to contribute are “rare”).
Philadelphia Police Department (PA). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see Letter from Ellen Berkowitz,
Deputy City Solicitor, City of Phila. Law Dep’t, to author (May 1, 2013) (on file with the New York
University Law Review) (attaching spreadsheet of settlements and judgments paid between 2006 and
2011). I removed motor vehicle (including police chase), labor and employment, and “miscellaneous”
claims to identify the subset of civil rights claims. Philadelphia did not produce responsive information
regarding indemnification decisions. See id. (objecting to request for information about indemnification);
Letter from Ellen Berkowitz, Deputy City Solicitor, City of Phila. Law Dep’t, to Kyle Applegate,
Commonwealth of Pa. Office of Open Records (May 20, 2013) (on file with the New York University Law
Review) (responding to an appeal of Philadelphia’s objection to the request for indemnification
information and explaining that the city “do[es] not track cases in which officers were required to
financially contribute” and “because [the city does] not track it, there is no data”).
Houston Police Department (TX). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Tiffany Evans, City
of Hous. Legal Dep’t, to author (July 20, 2012, 10:15 PDT) (on file with the New York University Law
Review) (attaching spreadsheet with civil rights settlement and judgment amounts between 2006 and
2011). Houston did not provide responsive information about indemnification decisions. See E-mail from
City of Hous. Legal Dep’t, to author (Feb. 28, 2013, 13:06 PST) (on file with the New York University Law
Review) (“No responsive information exists . . . because the City does not maintain that type of data.”).
Pennsylvania State Police (PA). For data about the amount paid to plaintiffs in police misconduct
suits and the number of cases resolved in plaintiffs’ favor, see Letter from William A. Rozier, Agency
Open Records Officer, Bureau of Records and Identification, Pa. State Police, to author (July 19, 2012)
(on file with the New York University Law Review) (providing spreadsheet of cases with payments). The
spreadsheet does not identify the nature of cases, and so non–civil rights claims may be included in their
tally. The Pennsylvania State Police did not provide responsive information about indemnification
decisions. See id. (denying request for records regarding indemnification on the grounds that “the PSP
does not maintain records responsive to these requests” and “would have to examine each resolved case
and compile, format and organize the information to create a record”).
District of Columbia Metropolitan Police (DC). For data about the amount paid to plaintiffs in
police misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Victor
Bonett, Legislative Affairs and FOIA Officer, Office of the Attorney Gen. for D.C., to author (Dec. 7,
2012, 14:15 PST) (on file with the New York University Law Review) (providing a spreadsheet of litigation
closed from fiscal year 2005 through fiscal year 2011). Note that this response does not include data from

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July 1 to December 31, 2011. The D.C. Metro Police did not provide responsive information about
indemnification decisions. See E-mail from Victor Bonett, Legislative Affairs and FOIA Officer, Office of
the Attorney Gen. for D.C., to author (June 20, 2012, 12:20 PDT) (on file with the New York University
Law Review) (“OAG does not retain documents [about indemnification practices] in a way that would
provide the information.”).
Miami-Dade Police Department (FL). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Brenda G.
Williams, Police Legal Bureau, Miami-Dade Police Dep’t, to author (July 10, 2012, 12:08 PDT) (on file
with the New York University Law Review) (attaching a spreadsheet of closed police lawsuits). MiamiDade did not provide responsive information about indemnification decisions. See E-mail from Angelica
Cruz, Liab. Claims Coordinator, Miami Dade Cnty. Internal Servs. Dep’t Risk Mgmt. Div., to author (July
27, 2012, 13:00 PDT) (on file with the New York University Law Review) (reporting that the amount of
money paid in settlements and judgments was “the only information available at our end”).
Nassau County Police Department (NY). Nassau County provided no information responsive to
my request. See Letter from John M. Donnelly, Counsel to the Nassau Cnty. Police Indemnification Bd.,
to author (Mar. 25, 2013) (on file with the New York University Law Review) (reporting that
documentation responsive to the requests “does not exist” and “would require the review and analysis of
all such lawsuits and determinations during the period in question”).
Suffolk County Police Department (NY). Suffolk County provided no information responsive to
my request. See Letter from Dennis M. Cohen, Suffolk Cnty. Attorney, to author (Oct. 18, 2012) (on file
with the New York University Law Review) (“[T]he records requested are not maintained in a manner
which would enable the County to identify them in response to this request.”).
Harris County Sheriff’s Department (TX). Harris County provided no information responsive to
my request. See Telephone Interview with Cheryl Thornton, Harris Cnty. Sheriff’s Legal Dep’t (Feb. 28,
2013) (reporting that the Harris County Sheriff’s Department does not keep the data requested, but that
Thornton asked attorneys in a “short poll” around the office and found no instance in which an officer was
not indemnified).
Detroit Police Department (MI). For data about the amount paid to plaintiffs in police misconduct
suits and the number of cases resolved in plaintiffs’ favor, see Letter from Ellen Ha, Senior Assistant
Corp. Counsel, Governmental Affairs Div., City of Detroit, to author (Mar. 8, 2013) (on file with the New
York University Law Review) (reporting that the department has records of lawsuit payouts from July 1,
2009 to February 1, 2013, but does not have records of payouts before July 1, 2009). Ms. Ha did not
respond to my requests for production of these records. Detroit did not provide responsive information
about indemnification decisions. See Letter from Ellen Ha, Senior Assistant Corp. Counsel, Governmental
Affairs Div., City of Detroit, to author (May 7, 2013) (on file with the New York University Law Review)
(“Neither the Law Department nor the Police Department keeps track of which Detroit police officers are
indemnified.”). A supervising attorney in the Detroit City Attorney’s Office did say, however, that officers
are represented and indemnified 99.8% of the time. Telephone Interview with Dennis Mazurek,
Supervising Attorney, Detroit City Attorney’s Office (Feb. 27, 2013).
San Diego Police Department (CA). San Diego provided no information responsive to my request.
See Letter from William Gersten, Deputy City Attorney, City of San Diego (Mar. 8, 2013) (on file with the
New York University Law Review) (“To uncover the information you seek would require the City to
search through each and every individual lawsuit filed against it during the five years requested, undergo
considerable historical case analysis in order to extract information, and then compile statistical data.”).
Baltimore County Police Department (MD). Baltimore County provided no information
responsive to my request. See Telephone Interview with Greg Gaskins, Balt. Cnty. Attorney’s Office (July
26, 2012) (“In other words, we don’t say we had 10 police cases in 2011 and 7 were settled for this amount.
We just do not do that.”). Even so, Mr. Gaskins reported that officers rarely contributed to settlements
and judgments. See id. (“Generally, as long as the PO is acting within the scope of the employment, we will
indemnify. . . . There can’t be that many where we actually refused. . . . I think I could probably count on
one hand, at most, if we had done so. Maybe one or two instances. It’s not something that has happened a
lot.”).
Virginia State Police (VA). The Virginia State Police provided no documents responsive to my
request. See Letter from Sara N. Poole, Legal Office, Bureau of Admin. & Support Servs., Dep’t of State
Police, Commonwealth of Va., to Jeffrey E. Fogel, Attorney (Sept. 25, 2012) (on file with the New York
University Law Review) (stating that no responsive documents exist). Note that the Virginia public records
law requires that a resident of Virginia file the requests. VA. CODE ANN. § 2.2-3704(A) (2011). Mr. Fogel,
a Virginia resident, submitted my request to the Virginia State Police.
Port Authority of New York & New Jersey Police (NY/NJ). The Port Authority provided no
documents responsive to my request. See E-mail from Ann L. Qureshi, Freedom of Info. Admin’r, Office

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of the Sec’y, Port Auth. of N.Y. & N.J., to author (July 8, 2013, 06:24 PDT) (on file with the New York
University Law Review) (reporting that the indemnification policies produced on July 5, 2013 “are the
entirety of the available records responsive to your request” and that she is “unaware if another
governmental entity might possess the records and/or information you request”).
Indianapolis Metropolitan Police (IN). Indianapolis provided no information responsive to my
requests. The first records request was sent to the Clerk of Marion Circuit Court at the suggestion of the
Indianapolis Metropolitan Police Department; the Clerk’s Office responded that it did not have
responsive information and directed me to send a new request to the Indianapolis Corporation Counsel’s
office. Letter from Scott Hohl, Chief of Staff, Marion Cnty. Clerk, to author (June 20, 2012) (on file with
the New York University Law Review). I sent an updated records request to Corporation Counsel on June
28, 2012; after eight unreturned calls to the office over a period of nine months, I was able to reach a
paralegal who reported that the office had no record of my request. Telephone Interview with Zaida
Maldonado-Prather (Apr. 17, 2013) (on file with the New York University Law Review). I sent an updated
request on April 18, 2013; the Office of Corporation Counsel for Indianapolis responded that the office
“does not have a record summarizing the information requested,” and that “[i]dentifying responsive
records . . . requires searching a voluminous amount of records already in storage.” Letter from Zaida
Maldonado-Prather, Paralegal, Indianapolis Office of Corp. Counsel, to author (Apr. 30, 2013) (on file
with the New York University Law Review).
Ohio State Highway Patrol (OH). Ohio Highway Patrol provided limited information responsive
to my requests. After receiving my public records request, the Ohio State Highway Patrol forwarded the
request to the Office of Legal Services in the Ohio Department of Public Safety; a paralegal responded
with a copy of the state indemnification statute and a spreadsheet reflecting $144,500 paid in settlements
during fiscal years 2010–2012 in cases involving named officers. Letter from Ashleigh R. Henry, Legal
Intern, Office of Legal Servs., Ohio Dep’t of Pub. Safety, to author (Sept. 21, 2012) (on file with the New
York University Law Review). An assistant chief legal counsel later confirmed that the office did not have
additional responsive records. See E-mail from Heather R. Frient, Assistant Chief Legal Counsel, Ohio
Dep’t of Pub. Safety, to Brian Cardile, Student, UCLA School of Law (Sept. 28, 2012, 13:52 PDT). The
Ohio State Highway Patrol policy provides that the state “shall indemnify an officer or employee from
liability incurred in the performance of official duties . . . ,” Representation, Indemnification & Immunity
of Sworn Officers, Ohio State Highway Patrol Policy No. OSP-905.01 (2010) (internal quotation and
citation omitted) (on file with the New York University Law Review), but this provision does not apply if
“the actions of the employee are deemed to be manifestly outside the scope of employment or official
responsibilities, or the employee is deemed to have acted with malicious purpose, in bad faith, or in a
wanton or reckless manner,” id. The Office of Legal Services did not provide information about whether
an employee of the Ohio State Highway Patrol had ever been declined indemnification.
Memphis Police Department (TN). The City of Memphis Law Division refused to respond to my
records request because I am not a Tennessee resident. E-mail from Chandell Ryan, Pub. Records Officer,
Senior Assistant City Attorney, Law Div., City of Memphis (July 10, 2012, 14:15 PDT) (on file with the
New York University Law Review) (reporting that municipal records will “be open for personal inspection
by any citizen of this state” (citing TENN. CODE ANN. § 10-7-503(a)(2)(A) (2012)). I was unable to locate a
Tennessee attorney who would pursue my public records request.
New Orleans Police Department (LA). New Orleans provided no information responsive to my
request. See Letter from Anita B. Curran, Assistant City Attorney, Law Dep’t, City of New Orleans (June
15, 2012) (on file with the New York University Law Review) (“Neither the New Orleans Police
Department nor the City Attorney’s Office maintains a record responsive to your request and the
custodial department would have to research its files and create a document to satisfy your request.”).
Fairfax County Police Department (VA). Fairfax County provided no information responsive to
my request. See Letter from Karen L. Gibbons, Senior Assistant Cnty. Attorney, Cnty. of Fairfax, Va., to
Jeffrey E. Fogel, Attorney (Sept. 21, 2012) (on file with the New York University Law Review) (stating
that no responsive documents exist). Note that the Virginia public records law requires that a resident of
Virginia file the requests. VA. CODE ANN. § 2.2-3704(A) (2011). Mr. Fogel, a Virginia resident, submitted
my request to the Fairfax County Police Department.
St. Louis Police Department (MO). For data about the amount paid to plaintiffs in police
misconduct suits, see Letter from Bridget R. Yates, Senior Paralegal, St. Louis Bd. of Police Comm’rs, to
author (Sept. 27, 2012) (on file with the New York University Law Review) (providing the “[t]otal dollars
awarded” and number of lawsuits resolved per year). St. Louis did not provide information about
indemnification decisions. See id. (reporting that information about instances in which indemnification
requests were denied is “[n]ot specifically tracked”).
Nashville-Davidson County Police Department (TN). My request was denied on the grounds that I
am not a Tennessee resident (and the Tennessee Open Records Act only authorizes citizens of the state to
seek information under the Act), but the respondent also wrote that “no documents exist that provide a

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list of information that is responsive to your request. To provide the information that you have requested,
a manual review would be needed of all litigation files involving the Metropolitan Nashville Police
Department between 2006 and 2011.” Letter from Wm. Michael Safley, Deputy Dir. of Law, Dep’t of
Law, Metro. Gov’t of Nashville and Davidson County (June 18, 2012) (on file with the New York
University Law Review).
Newark Police Department (NJ). The search for information about the Newark Police Department
was long and fruitless. I sent a request to the City Clerk’s office in June 2012. The request was denied on
the ground that the request did not seek specific records. See Letter from Robert P. Marasco, City Clerk,
City of Newark, to author (June 21, 2012) (on file with the New York University Law Review). Following a
conversation with the deputy city clerk, I made five separate, restyled requests to the Clerk’s Office. The
City Clerk’s office then referred me to the Law Department. Gunther Waldow, Assistant Corporation
Counsel, reported that, after speaking with people in the office of the Corporation Counsel and in the
city’s Business Affairs Office, it appeared that no one had a chart or database that includes the requested
information. See Telephone Interview with Gunther Waldow, Assistant Corp. Counsel, City of Newark
(July 27, 2012). Subsequent calls and e-mails to the Clerk’s Office, the Business Administration Office, and
the Finance Department produced no additional information.
Louisville Metro Police Department (KY). For data about the amount paid to plaintiffs in police
misconduct suits and the number of cases resolved in plaintiffs’ favor, see E-mail from Dee Q Allen, Open
Records Coordinator, Louisville Metro Office of Mgmt. and Budget, to author (June 20, 2012, 11:03 PDT)
(on file with the New York University Law Review) (providing information about “[l]itigated [n]on-auto
cases for LMPD paid since 2006”). Louisville did not provide information about indemnification decisions.
See id. (responding that “Risk Management does not track” information related to indemnification). A
subsequent request to the Louisville City Attorney’s Office was denied on the ground that “[n]either
Louisville Metro Government or our office as legal representative for Metro Government possess a
record, report or data-base that would provide the information concerning instances in which Metro
declined to indemnify a defendant employee of Louisville Metro Police Department (LMPD) for
compensatory or punitive damages.” Letter from Michael J. O’Connell, Jefferson Cnty. Attorney, to
author (Aug. 2, 2012) (on file with the New York University Law Review).
Cincinnati Police Department (OH). Cincinnati produced no information responsive to my
request. See E-mail from Roshani D. Hardin, Chief Counsel, City Solicitor’s Office, to author (July 26,
2012, 14:18 PDT) (on file with the New York University Law Review) (reporting “[t]he Law Department
doesn’t maintain any specific document or series of documents which would list every litigation case
involving the Cincinnati Police Department that would fall within the parameters of Professor Schwartz’s
public records request[,]” nor is there a “single document or series of documents” reflecting the Law
Department’s decisions on the subject of indemnification).
DeKalb County Police Department (GA). DeKalb County produced no information responsive to
my request. See Letter from Sonya D. Davis, Admin. Assistant of Open Records, Office of the Chief of
Police, DeKalb Cnty. Police, to author (June 14, 2012) (on file with the New York University Law Review)
(reporting that “the DeKalb County Police Department does not have any documents that are responsive
to your request” and “we believe that the County has no documents that are responsive to your request”).
Tucson Police Department (AZ). Tucson produced no information responsive to my request. The
initial public records request was sent in June 2012 to the Tucson Police Department; the request was then
referred to the legal advisors for the Tucson Police Department, who reported that they were not the
custodians for the records sought and suggested I send a request to the City Clerk’s Office. In October
2012, I sent a public records request to the City Clerk’s Office; the office assigned the request a log
number and then forwarded it to the Tucson City Attorney’s Office. After months of e-mails, letters, and
telephone calls to an employee of the Tucson City Attorney’s Office, I received a letter stating that the city
does not collect responsive information. Letter from Dennis P. McLaughlin, Principal Assistant City
Attorney, City of Tucson, to author (Sept. 20, 2013) (on file with the New York University Law Review)
(“[Tucson] does not maintain any responsive records or statistics (or generate reports) that are broken
down in the manner you have requested, or that use the categorizations that you are focused on. This is
true at all stages of our process: intake, administrative processing, litigation, settlement, trial, and posttrial.”).

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FOR

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SMALLER JURISDICTIONS

The following describes the responses (or lack thereof) from the seventy
small and mid-sized jurisdictions I queried, organized from largest to smallest
jurisdiction measured by full-time sworn personnel. For each jurisdiction, the
total number of sworn officers is from BJS LAW ENFORCEMENT CENSUS
DATA, supra note 82.
Omaha Police Department (NE). Omaha did not respond to my public records request.
Raleigh Police Department (NC). For responsive information, see E-mail from Dorothy K.
Leapley, Deputy City Attorney, City of Raleigh, to author (Oct. 7, 2013, 09:46 PDT) (on file with the New
York University Law Review) (responding that “the City has had lawsuits against RPD officers resolved
during the period you identify and payments have been made on some of those cases” but “[n]o officers
have been required to contribute to any settlement or judgment”).
Contra Costa County Sheriff’s Office (CA). For responsive information, see E-mail from Sharon
Hymes-Offord, Risk Manager, Contra Costa Cnty., to author (Oct. 10, 2013) (on file with the New York
University Law Review) (reporting nine cases with payments to plaintiffs and no officer contributions).
Delaware State Police (DE). The Delaware State Police denied my public records request and
directed me to search for responsive information at Delaware courthouses. See E-mail from Kimberly H.
Chandler, Media and Cmty. Relations, Del. Dep’t of Safety and Homeland Sec., to author (Nov. 14, 2013,
08:17 PST) (on file with the New York University Law Review).
Polk County Sheriff’s Office (FL). Polk County did not provide information responsive to my
public records request.
Cobb County Police Department (GA). For responsive information, see
Quigley, Dir. of Commc’ns, Cobb Cnty. Gov’t, to author (Oct. 7, 2013, 11:30 PDT)
York University Law Review) (listing eleven cases with payments to plaintiffs);
Quigley, Dir. of Commc’ns, Cobb Cnty. Gov’t, to author (Oct. 7, 2013, 11:28 PDT)
York University Law Review) (reporting no officer contributions).

E-mail from Robert
(on file with the New
E-mail from Robert
(on file with the New

Minnesota State Patrol (MN). For responsive information, see Telephone Interview with Matt
Langer, Minn. State Patrol (Oct. 25, 2013) (on file with the New York University Law Review) (reporting
that responsive files might be with the Attorney General’s office, although they would likely not produce
the information, but that he would “bet [his] next paycheck we didn’t have any troopers contribute to the
settlements during that period”).
Mobile Police Department (AL). Mobile did not provide information responsive to my public
records request.
Johnson County Sheriff’s Office (KS). Johnson County reported that it did not have information
responsive to my request. See Letter from Sheila Wacker, Records Supervisor and Custodian, Johnson
Cnty. Sheriff’s Office, to author (Oct. 9, 2013) (on file with the New York University Law Review).
Manatee County Sheriff’s Office (FL). For responsive information, see E-mail from Charla Eberly,
Legal Affairs Div., Manatee Cnty. Sheriff’s Office, to author (Oct. 30, 2013, 07:14 PDT) (on file with the
New York University Law Review) (providing a spreadsheet of lawsuits closed during the study period and
reporting that no officers were required to contribute during the study period).
Fort Wayne Police Department (IN). For responsive information, see Letter from Carol Helton,
City Attorney, Fort Wayne, to author (Oct. 24, 2013) (on file with the New York University Law Review)
(attaching a spreadsheet of lawsuits resolved during the study period and reporting that no officer
contributed to any settlement or judgment). I removed duplicate entries after asking Fort Wayne for
clarification.
Howard County Police Department (MD). For responsive information, see Letter from Alexandra
Bresani, Office of Pub. Info., Howard Cnty. Dep’t of Cnty. Admin., to author (Oct. 8, 2013) (on file with
the New York University Law Review) (reporting that it does not maintain a database with responsive
information, but that no officer has contributed to a settlement or judgment “during the Office of Law’s
thirty-three years of collective experience (including the 2006–2011 timeframe referred to in your email)
handling police cases on behalf of Howard County’s Risk Management program”).
Washoe County Sheriff’s Office (NV). Washoe County did not provide information responsive to

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my public records request.
Summit County Sheriff’s Office (OH). For responsive information about payments, see E-mail
from Linda Murphy, Cnty. of Summit Exec.’s Office, to author (Oct. 29, 2013, 16:11 PDT) (on file with the
New York University Law Review) (attaching a list of lawsuits closed during the study period and the
amounts paid to plaintiffs in each case); E-mail from Linda Murphy, Cnty. of Summit Exec.’s Office, to
author (Nov. 4, 2013, 12:41 PST) (on file with the New York University Law Review) (including
information regarding two additional cases). For responsive information about indemnification decisions,
see E-mail from Linda Murphy, Cnty. of Summit Exec.’s Office, to author (Oct. 25, 2013 4:08 PDT) (on
file with the New York University Law Review) (“No deputy has ever paid part of any settlement.”).
Anchorage Police Department (AK). For responsive information, see E-mail from Steve Hebbe,
Deputy Chief, Anchorage Police Dep’t, to author (Oct. 13, 2013, 16:10 PDT) (on file with the New York
University Law Review) (reporting that he did not have information about the amount spent in settlements
and judgments during the study period but, “[t]o my knowledge, we have not had any officers required to
pay into a settlement or judgment” with the exception of one case, currently pending). The pending case to
which Deputy Chief Hebbe referred concerns an officer who sexually assaulted five women and was
sentenced to eighty-seven years in prison. See Chris Klint, Anchorage Settles 11 Anthony Rollins Lawsuits
for $5.5 Million, KTUU.COM (Sept. 4, 2012), http://articles.ktuu.com/2012-09-04/sexual-assaults_33588082.
New Hampshire State Police (NH). For responsive information see Letter from Mary Ann
Dempsey, Senior Assistant Attorney Gen., Civil Bureau, N.H. Dep’t of Justice, to author (Nov. 22, 2013)
(on file with the New York University Law Review) (enclosing settlement agreements and court orders
regarding cases resolved during the study period and reporting that “[n]o officers were required to
contribute to any settlement or judgment”).
Hamilton County Sheriff’s Office (OH). Hamilton County provided a spreadsheet of lawsuits
involving the Sheriff’s Office but did not have information about whether deputies had ever contributed to
these cases. See E-mail from Jessica Jones, Admin. Sec’y, Hamilton Cnty. Sheriff’s Office, to author (Oct.
21, 2013, 10:58 PDT) (on file with the New York University Law Review) (attaching a spreadsheet of all
cases involving the sheriff’s office during the study period); E-mail from Jessica Jones, Admin. Sec’y,
Hamilton Cnty. Sheriff’s Office, to author (Oct. 21, 2013, 11:23 PDT) (on file with the New York
University Law Review) (reporting that the office does not maintain records about deputy contributions).
Boise Police Department (ID). For responsive information, see Letter from Ralph R. Blount,
Assistant City Attorney, Boise City Attorney’s Office, to author (Oct. 7, 2013) (on file with the New York
University Law Review) (listing four cases with payments to plaintiffs, two of which are confidential, and
reporting that there were no officer contributions).
New Bedford Police Department (MA). For responsive information, see E-mail from Lisa A.
Presby, Compliance Officer, City of New Bedford, to author (Oct. 23, 2013, 07:03 PDT) (on file with the
New York University Law Review) (reporting that determining the amount paid in settlements and
judgments during the study period “would require some research,” but that no officer was required to
contribute to a settlement or judgment during the study period).
Springfield Police Department (IL). For responsive information, see E-mail from Rex Range,
Clerk’s Office, City of Springfield, to author (Oct. 23, 2013, 14:06 PDT) (on file with the New York
University Law Review) (attaching settlement agreements in cases resolved during the study period, each
of which released the city and all its employees from liability in exchange for payments by the city, and
none of which referenced contributions by individual officers).
Overland Park Police Department (KS). For responsive information, see E-mail from John J.
Knoll, Senior Assistant City Attorney, Law Dep’t, City of Overland Park, to author (Oct. 14, 2013, 10:56
PDT) (on file with the New York University Law Review) (reporting the number of cases resolved from
2006 to 2011 and the amount paid to plaintiffs, and reporting that no officers contributed to any settlement
or judgment during the study period).
Waco Police Department (TX). For responsive information about payments, see Letter from
Jennifer Richie, City Attorney, City of Waco, to author (Oct. 29, 2013) (on file with the New York
University Law Review) (enclosing settlement agreements and court orders regarding cases resolved
during the study period). For responsive information about indemnification decisions, see E-mail from
Jennifer Richie, City Attorney, City of Waco, to author (Nov. 6, 2013, 14:39 PST) (on file with the New
York University Law Review) (“I have been told that we have not had officers contribute to settlements.”).
Tulsa County Sheriff’s Office (OK). For responsive information, see E-mail from Josh Turley, Risk
Mgmt., Tulsa Cnty. Sheriff’s Office, to author (Oct. 15, 2013, 07:42 PDT) (on file with the New York
University Law Review) (reporting that no officers contributed to settlements or judgments during the
study period).
Henry County Police Department (GA). Henry County did not respond to my public records

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request.
Bayonne Police Department (NJ). The City of Bayonne Law Division objected to my public
records request as overly broad. See Letter from William P. Opel, Assistant Corp. Counsel, City of
Bayonne Law Div., to author (Oct. 7, 2013) (on file with the New York University Law Review). The Law
Division did not respond to my amended public records request.
Quincy Police Department (MA). For responsive information, see E-mail from Michelle E. Clark,
Exec. Sec’y, Office of the Chief of Police, Quincy Police Dep’t, to author (Oct. 7, 2013, 08:31 PDT) (on file
with the New York University Law Review) (reporting that there were no cases in which plaintiffs received
payment during the study period).
Allentown Police Department (PA). Allentown did not respond to my public records request.
Killeen Police Department (TX). Killeen did not respond to my public records request.
Naperville Police Department (IL). For responsive information, see Letter from Jill Pelka-Wilger,
Assistant Legal Dir., City of Naperville, to author (Oct. 10, 2013) (on file with the New York University
Law Review) (attaching settlement agreements entered into during the study period and reporting that
“[n]o officers were required to contribute to any of the settlements or judgments”). Ms. Pelka-Wilger did
not have information about the amount of one of the eight settlements entered into during the study
period.
Pueblo County Sheriff’s Office (CO). For responsive information, see Letter from Cynthia
Mitchell, Assistant Cnty. Attorney, Pueblo Cnty. Attorney’s Office, to author (Dec. 12, 2013) (on file with
the New York University Law Review) (appending spreadsheet of cases resolved during the study period
and reporting that “no officers were required to contribute to any settlement or judgment”).
Decatur Police Department (AL). For responsive information, see E-mail from Wayne K.
Alexander, Jr., Assistant City Attorney, City of Decatur, to author (Oct. 17, 2013, 13:52 PDT) (on file with
the New York University Law Review) (“We are absolutely certain that no such [officer] contribution has
been required in the time frame you specified.”).
Schaumburg Police Department (IL). For responsive information, see E-mail from Rita Elsner,
Assistant Vill. Attorney, Vill. of Schaumburg, to author (Oct. 11, 2013, 09:15 PDT) (on file with the New
York University Law Review) (reporting that one plaintiff received payment during that time period and
that no officer was required to contribute to the settlement).
St. Mary’s County Sheriff’s Office (MD). For responsive information, see E-mail from Michael H.
Gardiner, Supervisor, Office of Prof’l Responsibilities, St. Mary’s Police Dep’t, to author (Oct. 7, 2013,
08:14 PDT) (on file with the New York University Law Review) (reporting that there were no cases in
which plaintiffs received payment during the study period).
Sandy City Police Department (UT). For responsive information, see E-mail from Chase Parker,
Sandy City Risk Manager, to author (Oct. 15, 2013, 14:13 PDT) (on file with the New York University Law
Review) (reporting that no officer was required to contribute to settlements or judgments during the study
period).
Milford Police Department (CT). Milford did not respond to my public records request.
Avondale Police Department (AZ). For responsive information, see E-mail from Sandra Tomsic,
City Clerk Assistant II, City of Avondale, to author (Oct. 14, 2013, 17:30 PDT) (on file with the New York
University Law Review) (listing four cases with payments to plaintiffs and no officer contributions).
Livermore Police Department (CA). Livermore did not respond to my public records request.
Pocatello Police Department (ID). For information about payments, see E-mail from Tiffany
Olsen, Paralegal/Assistant to the City Attorney, City of Pocatello, to author (Nov. 8, 2013, 08:30 PST) (on
file with the New York University Law Review) (describing two cases in which plaintiffs received payment
during the study period). For information about indemnification decisions, see E-mail from Tiffany Olsen,
Paralegal/Assistant to the City Attorney, City of Pocatello, to author (Oct. 15, 2013, 10:26 PDT) (on file
with the New York University Law Review) (reporting that officers did not contribute to settlements in
either case).
Hemet Police Department (CA). For information about payments, see E-mail from Stephen A.
McEwen, Assistant City Attorney, to author (Oct. 31, 2013, 14:41 PDT) (on file with the New York
University Law Review) (reporting six cases resolved with payments to plaintiffs during the study period).
For information about indemnification decisions, see E-mail from Stephen A. McEwen, Assistant City
Attorney, to author (Oct. 30, 2013, 14:56 PDT) (on file with the New York University Law Review)
(reporting that officers did not contribute to any settlement during the study period).

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Santa Fe Sheriff’s Office (NM). Santa Fe did not respond to my public records request.
Hillside Police Department (NJ). Hillside did not respond to my public records request.
Pelham Police Department (AL). Pelham did not respond to my public records request.
Eden Prairie Police Department (MN). For responsive information, see Letter from Jenna
Spaulding, Admin. Assistant, Eden Prairie Police Dep’t, to author (Oct. 7, 2013) (on file with the New
York University Law Review) (reporting that there was one case involving payment to a plaintiff during
the time period, and no officers contributed to the settlement).
Campbell County Sheriff’s Office (WY). Campbell County did not respond to my public records
request.
Yellowstone County Sheriff’s Office (MT). For responsive information, see E-mail from Kevin
Gillen, Deputy Attorney, Yellowstone Cnty., to author (Nov. 14, 2013, 11:39 PST) (on file with the New
York University Law Review) (describing cases in which plaintiffs received payment during the study
period, and reporting that no officers contributed to the settlements and judgments in these cases).
North Kingstown Police Department (RI). North Kingstown did not respond to my public records
request.
Plattsburgh Police Department (NY). Plattsburgh did not respond to my public records request.
Eustis Police Department (FL). Eustis did not respond to my public records request.
Tomball Police Department (TX). Tomball did not respond to my public records request.
Town and Country Police Department (MO). For responsive information, see Letter from Steven
W. Garrett, Principal, Curtis, Heinz, Garrett & O’Keefe, to author (Oct. 9, 2013) (on file with the New
York University Law Review) (reporting that Garrett has “been the City Attorney in the City of Town and
Country for almost twenty years and do[es] not ever recall any lawsuits against police officers where any
settlement was made”).
Lincolnton Police Department (NC). For responsive information, see E-mail from Rodney Jordan,
Chief of Police, City of Lincolnton, to author (Oct. 7, 2013, 6:55 PDT) (on file with the New York
University Law Review) (reporting that there were no cases in which plaintiffs received payment during
the study period).
Phelps County Sheriff’s Office (MO). For responsive information, see E-mail from Carol Bennett,
Phelps Cnty. Clerk, to author (Dec. 9, 2013, 09:51 PST) (on file with the New York University Law
Review) (reporting that there was one case during the study period in which a plaintiff received payment,
and that no officer contributed to that settlement).
Montezuma County Sheriff’s Office (CO). Montezuma County did not respond to my public
records request.
Jonesboro Police Department (GA). Jonesboro did not respond to my public records request.
Marshall County Sheriff’s Office (IN). Marshall County did not respond to my public records
request.
Ironton Police Department (OH). Ironton did not respond to my public records request.
Cadillac Police Department (MI). Cadillac did not respond to my public records request.
Oldham County Sheriff’s Office (KY). For responsive information, see Letter from Robert C.
Noble, Chief Deputy, Oldham Cnty. Sheriff’s Office, to author (Oct. 16, 2013) (on file with the New York
University Law Review) (reporting that Oldham County was involved in only one lawsuit during the study
period, and that the jury found in favor of the sheriff’s office).
Williamsburg Police Department (NM). Williamsburg closed its police department and did not
have responsive records. E-mail from Linda S. Bauer, Clerk/Treasurer, Vill. of Williamsburg, to author
(Oct. 11, 2013, 08:26 PDT) (on file with the New York University Law Review).
Cloverdale Police Department (CA). Cloverdale did not respond to my public records request.
Moulton Police Department (AL). Moulton did not respond to my public records request.
Edgewood Police Department (FL). For responsive information, see E-mail from Pete Marcus,
Chief of Police, Edgewood Police Dep’t, to author (Oct. 22, 2013, 10:13 PDT) (on file with the New York
University Law Review) (reporting that no plaintiff received a payment during the study period).
Evansville Police Department (WI). For responsive information, see E-mail from Dan Wietecha,

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City Adm’r, City of Evansville, to author (Oct. 8, 2013, 07:30 PDT) (on file with the New York University
Law Review) (reporting that there was one lawsuit settled with a payment to the plaintiff during the study
period, and no officer contribution).
Fruitland Police Department (ID). For information about payments, see E-mail from Jerry Mason,
Counsel for Idaho Cntys. Risk Mgmt. Program Bd. of Trs., to author (Oct. 31, 2013, 12:21 PDT) (on file
with the New York University Law Review) (identifying two cases settled with payments to plaintiffs
during the study period). For information about indemnification decisions, see E-mail from J.D. Huff,
Police Chief, Fruitland Police Dep’t, to author (Oct. 7, 2013, 09:16 PDT) (on file with the New York
University Law Review) (“[W]e have never had an officer contribute monetarily or otherwise to satisfy a
court settlement or judgment.”).
Prentiss Police Department (MS). Prentiss did not respond to my public records request.
Nettleton Police Department (MS). Nettleton did not respond to my public records request.
Jackson Township Police Department (OH). For responsive information, see Letter from Gregory
A. Beck, Baker Dublikar Beck Wiley & Mathews, to author (Oct. 9, 2013) (on file with the New York
University Law Review) (providing a list of claims and reporting that “[n]o involved officers were required
to contribute to any settlement or judgment”).
Lennox Police Department (SD). Lennox did not respond to my public records request.
Sutton Police Department (NH). Sutton did not respond to my public records request.
Waterloo Police Department (NE). For responsive information, see E-mail from Tim Donahue,
Chief, Waterloo Police Dep’t, to author (Sept. 25, 2013, 19:47 PDT) (on file with the New York University
Law Review) (reporting that there were no lawsuits brought against the department during the study
period).