By: Dr. Randall Swain, Eastern Kentucky University professor of Government
Violent encounters between police and American citizens have received renewed interest lately. The majority of this interest stem from racial considerations, which involve white police officers and African American citizens. Moreover, some of these encounters resulted in lethal outcomes that, in too many instances belies explanation or reason. The case of Sandra Bland is illustrative. She was a 28 year old African American woman from Chicago, who relocated to Texas to pursue a better employment opportunity. After initially being pull over by police officer Brian Encinia for failure to signal a lane change, she was arrested and three days later, found hanging in her jail cell. Another well documented incident involved the case of Charles Kinsey, who was shot by Jonathan Aledda, a North Miami police officer who claimed he shot Kinsey by mistake, even though Kinsey had his hands up, and was begging the police officer not to shoot. Aledda claimed he was aiming for the mentally disabled autistic man Kinsey was caring for.
As lamentable as the racial implications of these interactions between police officers and citizens suggests, I believe these incidents have a larger issue we need to consider, from the vantage point of public managers. For anyone who serves as a leader or manager in any capacity in public sector organizations, these incidents raise the specter of liability for constitutional torts. Constitutional torts refer to actions committed by public officials and civil servants – such as police officers — that violate the constitutional rights of the citizens they are supposed to be serving. Citizens can seek redress for torts by suing under the Civil Rights Act of 1871, 42 U.S.C. 1983. One of the implications of the U.S. Supreme Court’s decision in Hafer v. Melo (1991), is that a citizen, theoretically, could sue a police officers in their personal capacity because of constitutional torts, and a police officer who engages in acts of racial discrimination is an example of a tort—especially when it the outcome is injury or death. Herein is the point of this blog. Anyone in public organizations who hold leadership positions, such as human resource manager, should be concerned about the malfeasant behavior of civil servants who violate the constitutional rights of citizens.
As David Rosenbloom (2012) reminds us, until around the 1970s, police officers – as well as all public employees at any level of American government – held absolute immunity from civil suits for constitutional torts, but this changed after the Supreme Court’s ruling in the cases of Bivens v. Six Unknown Named Federal Narcotics Agents (1971), Scheuer v. Rhodes (1974), and Wood v. Strickland (1975). Absolute immunity provided public servants complete immunity from personal lawsuits and criminal prosecutions for acts committed within the context of their official duties. However, since the Bivens, Scheur, and Wood decisions, the courts have adopted qualified immunity. This means that public servants, such as police officers, can be prosecuted for known wrongdoings and violations of the law and for knowingly violating an individual’s constitutional rights. Yes, it remains true, that the standard for qualified immunity nevertheless continues to provide broad protections for police and other government officials who, as quoted by Wikipedia, “make reasonable but mistaken judgements about open legal questions….”, but nevertheless, the shift from absolute to qualified immunity does indeed pave the way for government workers to face prosecutions or constitutional torts for willful violation of the law.
Viewing this prospect from the perspective of a human resource manager (HRM) in public sector organizations – rather than from the vantage point of a citizen served by public employees – this is the issue we must consider. While I know of no constitutional torts that have arisen out of incidents of racialized policing, some of which have resulted in the death of citizens, the outcome of Sandra Bland’s case is instructive in how the standard of qualified immunity should give HRMs in public organizations pause. Since Bland’s death, evidence later surfaced which refuted Encinia’s claim that fear for his safety prompted his excessively demeaning encounter with her and subsequent detainment. While Encinia was never prosecuted for Bland’s death, nor was the public jurisdiction in which he served ever sued, Bland’s family did settle the case for approximately two million dollars and as part of an agreement to avoid prosecution, Encinia agreed to never work in any law enforcement capacity.
One of the lessons we strive to emphasize to graduate students in the Masters of Public Administration (MPA) program at Eastern Kentucky University (EKU), is that any incidence of ethical or legal malfeasance on the part of public employees at any level of American government creates cynicism and distrust in the minds of citizens regarding public organizations and public service at all levels of government. Regardless of whether these incidents stem from racial overtones, as with Bland’s and Kinsey’s case, or for any other reason, the inevitable outcome for the disclosure of such incidents is a decline in the public’s trust.
As leaders and managers in public organizations, human resource professionals not only have a stake in how public servants conduct themselves professionally in their interactions with the public they serve, but they also play a pivotal role in in mitigating the prospect of constitutional tort claims against public servants. One way the HRM capacity accomplishes this is by ensuring awareness in public servants, of their obligation and responsibility to conduct themselves ethically and lawfully when performing their duty. Another way public managers accomplish this is by encouraging familiarity and awareness in public servants of the potential consequences for violating the constitutional and statutory laws, as well as for violating the civil rights and liberties of citizens. Most – but not enough – public employers include training units that provide overviews of constitutional and statutory laws in their annual and biannual training sessions. These steps may seem prosaic, but they have proven to be effective in encouraging public servants to have a much more expansive outlook in their professional conduct. The proactive involvement of public managers in this process has the potential outcome of a win-win for all stakeholders involved. Ideally, it will diminish the type of incidents discussed in the opening vignette for this blog and public perception of public servants and organizations, rather than being one of skepticism and distrust, can become one of enhanced trust and appreciation.
Rosenbloom, David. 2012. Public Employees’ Liability for “Constitutional Torts”., in Public Personnel Management: Current Concerns, Future Challenges, 5th ed. New York: Routledge