On June 13, 2020, Ann Arbor civil rights lawyer David Nacht released language that he has proposed to Michigan legislators to combat police misconduct.  Nacht, who previously served as a legislative aide to US Senator John Glenn, wants to turn the public conversation about police misconduct into a specific debate about legal change at the state level.

“We must insist that the Michigan Legislature react to the political will of the protests by changing the law to empower citizens who are victims of police violence.” Nacht stated.

“The proposed bill is short and found below.  I explain what it accomplishes after the language.

 

  1. An Act to Deter Police Misconduct and compensate its Victims.
  2. The Legislature finds existing law insufficient to protect the public from police misconduct because existing law shields governmental entities and peace officers from liability for foreseeable violent acts of police misconduct. Therefore.
  3. Neither governmental immunity nor sovereign immunity shall bar a claim filed in state or federal court for damages for an intentional tort or for gross negligence sought as a result of unjustified violence against a person by a peace officer.  The State waives such immunities as to common law and statutory claims against a peace officer and/or governmental entities that employ peace officers.
  4. A new cause of action shall exist for victims of police misconduct and their survivors against peace officers and the governmental entities that employ them.  This action shall be for damages from violent acts that are grossly negligent or intentional that result in harm to persons.  This act shall not preempt common law claims.
  5. The doctrine of respondent superior shall apply to confer liability upon the governmental entity that employs a peace officer who engages in unjustified acts of violence, even in the event such violence is alleged or deemed to constitute an intentional tort.  This section shall apply for all applicable claims brought whether under common law or statute.
  6. Circuit courts have jurisdiction for claims under this Act where they arise.

Nacht explains,

“This language does not hold the police or their departments liable for simple negligent acts.  So if an officer is accidentally a little too rough and injures someone but is merely negligent, rather than grossly negligent, then normal immunity applies.  Nor does this act apply to property damage.  Both of these are important to prevent a floodgate of cases.”

“I bring police misconduct lawsuits as well as suing employers for discrimination.  When a private sector boss discriminates or harasses, I can get the court to hold the company liable. Companies therefore have an economic incentive to eliminate discrimination and harassment.”

“When I sue a municipality for police misconduct however, the case is usually dismissed by the court because of “governmental immunity” a state law legal doctrine.  When I sue in federal court, the doctrine of “qualified immunity” protects the officers in most cases.  And unless I can show a policy caused the misconduct — an impossible standard— I cannot hold the municipality liable.  So unlike the case with private employers, there is no economic deterrent. “

“Public entities should face the same threat from trial lawyers as private companies.  If they do, they will change themselves to avoid expensive jury verdicts.  It is both cheaper and more just to get the cities to “police themselves” than to protect them in court with legal doctrines.  What we are seeing now with the protests is a loss of faith in the rule of law because we have not allowed enough civil law to force change.”

Nacht notes that the US House of Representatives Judiciary Committee is holding hearings on legislation to eliminate qualified immunity.

Nacht states:  “Why isn’t the State moving on the changes we need in state law?  We need lawmakers to pass new laws.”