Civil unrest, as in “rioting”, is a breakdown of the rule of law. This is a theme we have returned to a number of times here at LoS. We return to it today for obvious reasons.

The officer starring in the viral video – Derek Chauvin – shown with his leg on the neck of George Floyd – killing him – has now been charged with murder. That is to say, in a period of a few days of becoming famous owing to the video, he was fired from his department, charged, been arrested and taken into custody.* That’s pretty fast work by the government.

Of course it’s also a rather transparent effort to toss a bone to a braying mob. It’s more of the same. We have seen exactly this sequence of events – a viral, unjustifiable police killing followed by civil unrest followed by political posturing and serving up the culprit for criminal punishment – all designed to quell a rebellion that might otherwise get out of hand, many times before at this point. Rinse and repeat.

Civil unrest is a moment, though. A moment for some reflection, some thought, some analysis of what went wrong and finally prompted the civil unrest. We don’t do enough of that, obviously, because we keep coming back to the same place for the same reasons. Or similar reasons anyway.

Surely race is involved. We can’t add much of value to that discussion.

But here’s something we might offer that could help. We’ve offered it before. No takers. Let’s try again:

Civil lawsuits for money damages.

Who polices the police? Ultimately we do. Not just “we” here at LoS but all of us, collectively. Who should pay when our police negligently or intentionally cause damage, when they injure or kill someone, when they wrongfully arrest and charge someone, when they wrongfully convict and imprison someone? We should. They do these things in our name, on our behalf. We’re responsible. We have to pay.

Do we? No. We don’t. Why not? Because the courts, our courts – also our responsibility – don’t permit the lawsuits that would force the payment. Such lawsuits are authorized, of course, because 42 U.S.C. 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

But, do you see that “every person” part right at the beginning? The joke’s on you. Or us, as the case may be. Because “every person” that 42 U.S.C. 1983 would apply to is immune from being sued. Every single person. Not because the statute says so. You won’t find it in there. No.

No. The reason “every person” is immune is that the SCOTUS said so. Just made it up and tacked it onto the statute, effectively nullifying it. We reviewed the resulting statistics some years ago:

In 2006, there were about 1.1 million felony convictions nationwide in state courts alone.  There were 14.4 million arrests.  DOJ BJS Statistical Tables 2006, NCJ 226846

In that same year there were – at most – 18,000 constitutional civil rights complaints filed in federal courts stemming from state and federal enforcement of criminal laws, excluding prisoner petitions.  NCJ 222989 I exclude prisoner petitions not because they significantly alter the statistical ratios, but because the comparison is more apt when only those civil rights claims from people who have something to do other than sit in a prison cell are considered, and also because non-prisoner petitions are more likely to involve a Plaintiff who has been genuinely wronged, even by the government’s own estimation.

Let’s put these statistics in context.  In 2006 the number of civil rights complaints was less than 2% of the state felony convictions in the same year.  But the fairer comparison would be to the number of arrests, which are more closely analogous to the filing of a complaint in the civil setting.  That ratio would be 18,000 over 14.4 million – more like 1/10th of 1%.

But it gets worse.  If historical ratios hold, something less than one-third of the civil rights complaints that are filed will meet any significant degree of success.  Two-thirds will be dismissed at the complaint stage or upon “summary judgment” – a remedy, by the way, that is widely available and granted to defendants in civil cases but not defendants in criminal cases, 7th amendment considerations be damned.

Thus, of the 18,000 civil rights complaints filed in 2006 stemming from state and federal enforcement of criminal laws, something less than 6,000 will attain any degree of success.  NCJ 222989 Thus, based on these statistics, the incidence of valid claims of constitutional civil rights violations in the constitutionally laden area of criminal law enforcement is 6,000 over 14.4 million.

This is considerably less than one-tenth of one percent; in other words, a statistically almost insignificant amount.  It would be fair to just call it zero violations of civil rights in the United States stemming from criminal law enforcement.

These ratios are substantially confirmed by an entirely distinct set of statistics comparing the 2006 nationwide government “direct expenditures” on all law enforcement functions at the federal, state and local level – $214 billion (NCJ 224394) – and the collective median awards for the successful civil rights actions stemming from law enforcement activities for the same year, which could not have exceeded 6,000 at $100,000 a piece for a total of not more than $600 million.

In other words, the awards for civil rights violations stemming from criminal law enforcement could not have exceeded one-quarter of 1% of the expenditures on law enforcement, and were likely considerably less.

The idea that law enforcement in the United States is 99.75% free of constitutional violations is absurd on its face. But that is what our courts have effectively held.

By so doing, through the judicially invented doctrine of immunity, they have protected the public coffers from the sometimes arbitrary impositions of jury awards. But the trade-off is a law enforcement culture that has come to believe in its own invulnerability, its own infallibility.

There being no remedy in the courts by the courts’ own design, we will occasionally be subject to civil unrest. In other words, the rioting in American cities taking place right now are the SCOTUS’s fault, and to a significant degree the fault of all the lower courts and indeed the legal profession itself. It is shameful for us – or should be – that so many of our fellow citizens pursue such a wasteful and pointless “remedy” precisely because we have failed so miserably to do our jobs, to do the hard work of bringing the scales of justice back into balance on an ongoing, daily basis.

Not only that, we bear the lion’s share of the blame for the fact that George Floyd is dead in the first place. Our job is to deter the police behavior that killed him before it ever takes place. We do an absolutely terrible job of that. Abysmal, as we once noted.

Meh. We’re just repeating ourselves.

One last thing. It may be cathartic for everyone to prosecute Derek Chauvin and convict him of murder. But our focus on that remedy is also part of the problem. We say we understand that police brutality and police racism are “systemic”; but convicting and punishing the one officer costs the system nothing. The system will change only when the system is held accountable. Only when the system pays.

Lawsuits, properly trained and disposed lawyers and conscientious juries can make that happen.** Nothing else can.

Nothing else has.


*Apparently his wife is divorcing him, too. No comment.

**Interesting that SHG comes to exactly the opposite conclusion this morning. That means something, we think.