Issue 2: Montana Supreme Court to Police: With Great Power Comes Vicarious Liability

August 21, 2022 By Kyle C. Barry

Police officers constantly ask courts for more power and less accountability. More power to search and surveil and even kill people, and immunity from any sort of consequence when they abuse that power. And for the most part, courts have complied. U.S. Supreme Court precedent warns lower courts not to second-guess police conduct from “the peace of a judge’s chambers,” and the judge-made doctrine of qualified — and in some cases even absolute — immunity makes suing law enforcement officers nearly impossible. 

But on Tuesday the Montana Supreme Court decided a different kind of police liability case, and, in allowing a lawsuit over police violence to move forward, sent the government a clear if subtle message: Be careful what you wish for. 

In 2015, a federal law enforcement officer in Montana sexually assaulted a woman who had called the police for help. Upon arrival, the officer threatened to arrest the woman for drinking around her children and coerced her into sex. The woman later filed suit under the Federal Tort Claims Act, a statute that holds the federal government civilly liable for certain acts of its employees — but only if the acts are committed in the course of employment. 

The officer’s scope of employment was at issue before the Montana Supreme Court. Government lawyers argued that sexual assault is necessarily outside an officer’s employment and so the lawsuit must be tossed, yet another attempt to close the courthouse doors to people harmed by police. But the court disagreed in a 5-2 ruling, holding that “law-enforcement officers do not, as a matter of law, act outside the scope of their employment when they use their authority as on-duty officers to sexually assault a person they are investigating for a crime.”

To get there, the court invoked the inherently violent and coercive nature of American policing:

Police officers are assigned law-enforcement and community-protection duties which include the authority to detain, arrest, frisk, search, seize, and even use deadly force when necessary. Broadly, the job duties of law enforcement officers include initiating nonconsensual, and at times invasive, physical contact with members of the public pursuant to law enforcement goals. . . . . Further, police officers wear visible signs of this employer-conferred authority—a marked car, uniform, badge, and weapons—which officers use to carry out their employment duties. These duties frequently authorize and involve entering homes, detaining criminal suspects at gunpoint, placing suspects in handcuffs and into police vehicles, and subjecting them to forceful, nonconsensual, and offensive contact. With these considerable and intimidating powers comes an inherent risk of abuse[.]

But it’s not just that police have such power — it’s that they have demanded it, and judges, tasked with setting the constitutional boundaries of police tactics, have largely acquiesced. The court makes this point in an easily-glossed-over but revealing string cite of examples showing how the police, government lawyers, and the courts have steadily expanded police powers while eroding judicial review:

See, e.g., Mitchell v. Wisconsin, 139 S. Ct. 2525, 2538-39 (2019) (plurality) (permitting warrantless blood tests on unconscious drivers pursuant to drunk-driving investigations); Mullenix v. Luna, 577 U.S. 7 (2015) (per curiam) (granting qualified immunity to an officer who fired six shots at a fleeing felon’s vehicle, killing the driver); Maryland v. King, 569 U.S. 435, 465-66 (2013) (permitting DNA cheek swabs as part of police booking procedures); Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 324 (2012) (describing and permitting strip searches requiring inmates to “lift [their] genitals, turn around, and cough in a squatting position as part of the process”); Terry v. Ohio, 392 U.S. 1, 17 n. 13 (1968) (describing the physically invasive nature of patdowns). 

The point, in other words, is that law enforcement can’t have it both ways. If police demand sweeping, unchecked authority—authority that courts have routinely granted or at least declined to question—they cannot then turn around and claim that egregious acts of police violence are, as a matter of law, outside the officer’s “scope of employment.” 

Vacancies & Elections

New York groups say no to more prosecutors on the state’s high court. More than 100 organizations sent a letter to New York Governor Kathy Hochul laying out their vision for who should replace retiring Chief Judge Janet DiFiore. Among the demands: “the next Chief Judge must not be a former prosecutor.” Peter Sterne has more in City & State:

On Friday, the coalition sent a letter to Hochul laying out a set of criteria for her to consider when nominating DiFiore’s replacement as chief judge. The letter was spearheaded by the Center for Community Alternatives and co-signed by more than 100 other progressive organizations – including such heavy hitters as the state Working Families Party, New York Communities for Change, Make the Road NY, and the United Auto Workers Region 9A. The letter, which was shared with City & State, calls on Hochul to nominate “a thoughtful, principled lawyer who will safeguard New Yorkers’ rights, bring independence and a demonstrated appreciation for the law’s power to protect the most vulnerable, and defend our democracy in the challenging years ahead” to be the state’s next chief judge.

[Read the full letter]

New Jersey calls in temporary justices. Chief Justice Stuart Rabner ordered three judges — two Democrats and one Republican — to serve as temporary justices on the New Jersey supreme court effective September 1. The court has three current vacancies and one pending nominee. But that nominee, civil rights lawyer Rachel Wainer Apter, has so far been unilaterally blocked from confirmation by Republican State Senator Holly Schepisi. Rabner’s order will maintain a 4-3 Democratic majority on the court. 

State Constitutions In The News

In a major 4-3, party-line ruling on Friday, the North Carolina Supreme Court set limits on the power of lawmakers elected from unconstitutional, racially gerrymandered districts. In 2018, after the U.S. Supreme Court struck down the state’s gerrymandered districts, and knowing that district lines must be redrawn, state lawmakers rushed to pass multiple state constitutional amendments — including one that created a voter ID law. In other words, lawmakers doubled-down on discrimination, using power obtained by disenfranchising Black voters to pass a law that, one federal judge later found, would impede Black people’s political participation. 

In its ruling, the court held that “article I, sections 2 and 3 of the North Carolina Constitution impose limits on these legislators’ authority to initiate the process of amending the constitution under these circumstances” — though the ultimately remedy in this case is TBD.

Read more via this thread from Allison Riggs, Co-Executive Director and Chief Counsel for Voting Rights at the Southern Coalition for Social Justice: