Here at Overlawyered we post a lot about the problem of police misconduct, which is a deep-seated one in our system and corrosive to individual liberty. But there’s a flip side too, presented here by Max McCann in a guest column: one-way fee provisions can create an incentive to file dubious or marginal misconduct complaints, and some commentators will predictably jump on those allegations as if they represented actual findings of wrongdoing. McCann is an attorney who represents the City of New York; the guest column (which previewed yesterday in the Daily Caller) reflects his views alone. Read it here.
More: Responses from Scott Greenfield and commenters.
5 Comments
I suppose we have two problems here: 1) the problem of police abuse, AND 2) the problem of false or “frivolous” claims. And there is a possible third problem: 3) How to measure what effect each problem has on the other?
McCann is correct that current federal law, with its huge awards of attorneys’ fees even when the injured plaintiffs receive only small amounts, certainly incentivizes bogus or marginal claims.
AHowever, this assertion is interesting:
Most of the time, reporters avoid writing a story about an arrest in a way that assumes the guilt of the person charged. But when wrongdoing is charged against law enforcement itself, in the form of civil complaints against police officers, reporters too often treat plaintiffs’ contentions as if somehow pre-validated as findings of genuine misconduct.
….
I think McCann is mostly correct here, but the reality is a bit more complex. The Duke Lacrosse Hoax comes immediately to mind. In that case, the three defendants alleged serious misconduct in the investigation by the Durham Police Department and the prosecutor, Mike Nifong. Subsequently, these charges were shown to be largely correct (Nifong was fired, disbarred and briefly jailed). But the media mostly ignored these claims while trumpeting the plight of the lying accusor, Crystal Mangum. So the media spin on this cases largely depends, as Lenin put it, on, “Who? Whom?”.
prior probability,
4) Perspective issue: NYC has one of the highest, if not the highest, number of LEOs per capita of any city in the U.S. This will make the issue of police abuse in NYC look worse than it is elsewhere even if it’s not.
I believe a lot of this has to do with an increase in violent crime and failing to realize that criminals, collectively, have been given more of a “pass” for violent behaviour. Somethings got to give.
The police officers life is in jeopardy and he’s got to consider what he’s going to have to explain to a courtroom full of screaming relatives of the deceased. We can all site references to “police violence” that don’t wash. Yes, there are some P.O.’s that turn crazy. But not that many. And there are a lot more criminals than police.
I want to go home safe to my family and I have a duty to protect myself.
By the way, doesn’t the qualified immunity doctrine provide a sufficient answer to McCann’s argument … my impression is that it is very difficult for plaintiffs overcome this hurdle