Strict Tort Liability for Police Misconduct

By Feldman, Elias R. | Columbia Journal of Law and Social Problems, Fall 2019 | Go to article overview

Strict Tort Liability for Police Misconduct


Feldman, Elias R., Columbia Journal of Law and Social Problems


The disproportionate rates at which police use wrongful deadly force against racial minorities in the United States is a matter of significant national concern. This Note contributes to the ongoing conversation by proposing a new legal reform, which calls for the state law imposition of strict tort liability on municipal governments for police misconduct. Such a reform could remedy the harms of police misconduct more fully than the existing laws do.

Under the Restatement (Third) of Torts, a person who is found by a court to have carried on an "abnormally dangerous activity" will be subject to strict liability for physical harm resulting from that activity. An abnormally dangerous activity is one which creates a foreseeable and highly significant risk of harm even when reasonable care is exercised in its performance; it is also an activity of "uncommon usage" in the sense that the risk it creates is nonreciprocal. In Part II, this Note explains how the policies and practices of modern policing, in conjunction with human cognitive limitations, cause policing to create a foreseeable and highly significant risk of harm even when performed with reasonable care. Part III then explains how policing's risk is disproportionately borne by racial minorities, and how this nonreciprocity of risk imposes a dignitary harm on third-party racial minorities distinct from the physical harm suffered by police misconduct's immediate victims. Part IV, in turn, discusses how policing's nonreciprocal risk also makes policing "uncommon" in the relevant sense. Having established that policing is the kind of activity to which strict liability can be properly applied as a matter of law, this Note argues in Part V that imposing strict tort liability on municipalities for police misconduct is desirable as a matter of policy because strict liability rules are uniquely effective at correcting the misallocation of social costs and benefits stemming from nonreciprocal risk. Finally, this Note concludes in Part VI by anticipating possible political and legal objections to the proposed reform.

I.Introduction

Americans are divided over issues of race and policing.1 While Americans across the social spectrum are aware that racism is a major problem in the United States,2 many still disagree about the problem's extent.3 Americans are particularly polarized over high-profile movements protesting police violence toward racial minorities.4 Studies have shown that police officers use force against racial minorities at disproportionately high rates, and there is reason to believe much of this force is unjustified.5 This unequal distribution of policing's risk causes a dignitary harm to entire communities of racial minorities - one that is independent of the physical and dignitary injuries suffered by individual victims of unjustified force. Injured parties who seek recourse through criminal and civil laws find that both fall short of providing a satisfying remedy for these harms. Accordingly, the failure of America's social institutions to fully address policing's harms is a primary target of today's police reform efforts.6

This Note proposes and defends a legal reform that has the potential to go further than existing laws in remedying the harms of police misconduct. Specifically, this reform imposes strict tort liability on municipalities for wrongful police harms upon a find1. ing that the resulting injury was wrongful in a criminal proceeding. In essence, the reform proposed in this Note should be adopted as a matter of policy and can be adopted as a matter of law.

As a matter of principle, a strict liability rule should be adopted as a matter of policy because it promises possible social benefits that outweigh its potential social costs. This Note uses three policy goals as benchmarks by which to measure the social desirability of legal approaches: the law enforcement interest; the justice interest; and the social equality interest.7 The more policy interests an approach advances and the further the approach advances them, the more desirable the approach. …

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