When Baltimore City’s chief lawyer Andre Davis reaffirmed several weeks ago that the City would not always agree to pay punitive damages judgments awarded against Baltimore Police Officers who intentionally and flagrantly abuse their authority, many people in Baltimore, including us at the ACLU of Maryland, cheered.  The hope was that holding officers personally accountable for paying those (very rare) punitive damages would help deter that kind of egregious misconduct.  So when the City announced after the verdict in the Gun Trace Task Force (GTTF) trial that it would not pay any damages awarded against the officers who plead or were found guilty, it is not surprising that some people also saw that as a step forward for individual police accountability.  But it isn’t.  Instead, it is a transparent attempt to again shift the cost of the BPD’s own repeated and systemic failures onto the people who have been victimized.

We see the City’s position on the GTTF officers differently, because there are two kinds of damages that can be awarded by juries in this country, compensatory and punitive, and our laws treat them differently.  Compensatory damages are the ordinary kind of damages a plaintiff in a lawsuit gets from a defendant who is found guilty or settles.  Those damages are meant to compensate the plaintiff for the harm they have suffered, and fix the harm as much as money can.  It can include actual losses of money or goods (such as money or property stolen by the GTTF officers), and can include compensation for the pain and suffering a person experiences from a legal wrong (such as a false arrest), even if the arrest doesn’t cause any out-of-pocket expense.

Punitive damages are awarded (though very rarely) in addition to compensatory damages in cases where the plaintiff can show that the defendant acted “with malice”, that is with the intent to harm the victim, knowing that what they were doing was wrong.  The purpose of punitive damages is to financially punish the wrongdoer, in the hope of deterring that kind of misconduct.

Why does all of this matter?  One important reason is that the obligation to pay a judgement for compensatory damages can be erased by declaring bankruptcy.  That can make it very hard for plaintiffs to actually collect any of the damages they have been awarded by a court against an individual officer.  However the obligation to pay punitive damages cannot be erased by declaring bankruptcy.  So, by saying that the City will not pay any damages awarded against the GTTF officers, they may make it impossible for the people those officers harmed and stole from to ever actually get compensated for those harms.  Even if punitive damages are awarded (and if ever there was a case that warranted them, this is it), there is no guarantee that those damages will match the actual harm caused, the process for actually collecting them is likely to be time consuming and costly, and there is no guarantee that the defendants will have the ability to pay them (and they will presumably be in prison, so not earning money to pay them).

The City’s position also flies in the face of Maryland law that requires local governments to pay any compensatory damages awarded against an employee acting “within the scope of [their] employment.”  That key phrase does not mean the acts were legal, Otherwise local governments would never have to pay any judgments, which by definition only exist when an employee acts illegally.  Rather, it means that the employee was acting based on the authority given to them by the government.  That describes most of what the GTTF officers did.  They were able to stop and search – and ultimately rob – people because of their authority as police officers.  They were able to search – and rob – residences because of their authority as police officers with warrants.  They harmed, and even killed, people while on duty, by virtue of their authority as police officers.  The City bears not only legal responsibility for these acts, but a moral one as well.

What’s the bottom line? Victims of police abuse should not be left holding the bag when they deserve compensation because their rights were violated. Cities like Baltimore should pay the compensatory damages award, and then, as Maryland law specifically allows, the City should try to get that money back from their employee.  That way the City ensures that the victim is adequately compensated, and that the City, not the victim, bears the burden and expense of collecting that compensatory damages award from the officer.  And the City should not indemnify the officers for any punitive damages awarded, so that the burden of paying that part of the judgment will fall on the person most culpable.  This will ensure that both officers and the City are incentivized to actually try to prevent misconduct in the first place.

The City hired, supervised, and failed to monitor and discipline these officers and bears responsibility for these crimes, most of which were done while they were on duty and under the cover of the powers granted by their status as police officers.  It cannot simply wash its hands of the matter and leave victims without any real remedy.  That is not police accountability.  That is an unacceptable abdication of responsibility and victimizes the victims again.

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