Crime & Federalism

Greetings from the Georgetown University Law Center, where I am doing the unthinkable, and attending a seminar on 1983 litigation. For the first twelve years of my career as a lawyer, I was an employee, and then partner, of John Williams, one of the deans of 1983 litigation nationwide. No need for CLE when I just had to walk down the hall to get a tutorial. But since forming my own firm, I fear I am going rusty. I admire people who read widely in law, watching doctrine develope from circuit to cicuit. It is all I can do to keep track of my cases.

Today's seminar was on police misconduct. It appears as though about 70 percent of the class was defense counsel, which surprised me. Somehow I expected more fellow-travelers -- exhausted plaintiff's lawyers looking for inspiration.

David Rudovsky from the University of Pennsylvania gave an excellent presentation on qualified immunity. It disappointed in only one regard. I am still trying to understand the 2002 decision by the U.S. Supreme Court in Saucier v. Katz. That case held that qualified immunity could be granted in a case even though a finding had been made that a police officer used unreasonable force. I simply cannot understand how a fact finder can conclude that it was objectively unreasonable to use force, but that it was objectively reasonable for the officer to believe conduct that is unreasonable conduct was all right.

Rudovsky, who wrote an amicus brief in the case, appears not to understand it, either. The gist of his presentation suggested that the courts finesse the issue. When faced with a qualified immunity issue in a use of force case, the courts will simply address the underlying use of force question. I am not satisfied with that as an answer, but I don't have a better one.

Andrew Clarke of Memphis, Tennessee, also spoke. I'd not heard of him before the conference. He's worth watching. He briefed the case of Scott v. Harris, argued earlier this term and soon to be decided by the Supreme Court. The case may shed new light on qualified immunity in the context of a high-speed chase.

Police force trainer Jack Ryan also spoke. He likes Tasers in general. An interesting statistic. One insurer for a major police force paid out $8 million in claims on unreasonable force claims in a given year. During that same year, the insurer paid out approximately $125 million in workers' compensation claims for injured police officers. Most of the injuiries occurred in making arrests. Ryan hopes use of Tasers will yield less resistance to officers as word gets out that getting zapped hurts.

The focus turns tomorrow from police misconduct to general 1983 claims. I recommend the seminar to practitioners. It is a good thing from time to time to look beyond tomorrow's skirmishes and focus pureply on legal doctrine.