Police misconduct exists in Iowa. Racial disparities in Iowa’s criminal and civil justice system exist. They are real. They are problematic. Unfortunately, neither police misconduct nor racial disparity in our justice systems are likely to undergo real, substantive reform anytime in the near future. The reason? The law, as it exists, fosters, breeds, and encourages misconduct and disparity.
The courts are charged with interpreting and enforcing the laws as they exist. The courts have no power to change the direction substantively. While constitutional protections can be interpreted by our courts to invalidate outdated or overtly inequitable legislation, the Iowa courts have, to date, declined to fashion legal remedies that adequately remedies these significant issues. They have primarily elected to interpret and apply the law as written by the Legislature. After all, that is the stated role of the courts. We have all witnessed the backlashes that arise out of our courts stepping up and invalidating legislation on constitutional grounds.
The recent Iowa Supreme Court decision of Wagner v. State of Iowa and William Spece highlights one of the primary deficiencies in the movement to combat police misconduct; the lack of an adequate and sufficiently deterrent legal remedy. In Wagner, the mother of a young man killed by a Department of Natural Resources (“DNR”) officer attempted to sue the State of Iowa and the offending officer for negligence as well as a violation of the Iowa Constitution. The DNR officer shot and killed a suicidal 19-year-old holding a pistol but had not threatened or pointed it at any responding officers. The local officers who responded were familiar with the young man and intentionally withheld fire, knowing his mental health concerns. The DNR officer, who had been advised of the young man’s mental health conditions, showed no such restraint.
The primary issue involved in the Wagner case was whether or not an individual who is wronged by police misconduct in Iowa must first go through a unique process of submitting a claim to the State of Iowa in an attempt to settle the claim before filing a lawsuit. The Iowa Supreme Court concluded that the injured party must follow the process. According to the court, before an injured party can sue the State or an employee of the State based on a violation of their constitutional rights, the procedural formalities must be exhausted. More importantly, the decision also concluded that punitive damages, a legal tool used to deter and punish egregious wrongful conduct by a defendant, were not available to a person who sues the State of Iowa or an employee of the State, for a violation of their Iowa Constitutional Rights.
The Wagner case highlights and emphasizes the special treatment that governmental agencies receive when accused of wrongful and unconstitutional conduct. This special treatment arises from the 11th Amendment to the United States Constitution, which grants Sovereign Immunity to states. Sovereign immunity boils down to the legal proposition that neither the government, its employees, or entities may be sued unless they first consent to be sued. You read that correctly. States and their employees cannot be sued by citizens unless the State first consents and gives permission to be sued. They are absolutely immune from being sued.
Sovereign immunity arises from the antiquated English law premise that “the King can do no wrong.” What results is a legal system that allows the King and his henchmen to do what they please with little fear of any meaningful repercussions. This constitutional provision grants the government a license for misconduct. Unless, of course, the state passes a law allowing itself to be sued. This has occurred in certain limited circumstances, and Iowa’s consent to being sued was at the center of the Wagner decision.
All law enforcement officers are agents of the executive branch of government that are charged with each State’s laws. Whether members of the Iowa State Patrol, Iowa Department of Criminal Investigations, Department of Natural Resources, County Sheriffs, City Police Officers, every sworn peace officer in the state of Iowa is either an employee, subdivision, or municipality of the state. As a result, Sovereign Immunity is used as a foundation for creating some very troublesome legal protections for bad-acting government officials. GRL discussed a number of these issues in more depth in prior blog posts. They include Pretextual Traffic Stops and Absolute and Qualified Immunity.
What has now developed is a body of well-established legal precedent that discourages wronged citizens from attempting to hold offending government officials legally responsible for illegal acts. Courts, holding dear to the concept of “the King can do no wrong,” have interpreted the existing laws in a way that makes keeping the King accountable, unnecessarily, and unreasonably demanding.
The Legislature has similarly contributed to the enabling of police misconduct. First, the Legislature has created something called the Law Enforcement Bill of Rights, which furnishes law enforcement extraordinary privileges when they are being investigated for misconduct. These investigations conducted by other law enforcement members often turn into a tragically comical dance with the facts. The provisions of the Law Enforcement Bill of Rights award law enforcement and their employing government entities the privilege of developing their own version of the facts in a manner that best suits their legal needs as opposed to locking down the absolute truth of what happened. Just as important, it makes it increasingly difficult to fire an officer who is proven to have committed misconduct.
Second, the State is run by humans. At the very foundation of human nature is self-preservation. Do not forget the State can only be sued in state court based upon the State’s permission. It would be interesting to sit in on the Founding Father’s discussions on this topic to understand their logic behind Sovereign Immunity. They had to have recognized that it is human nature for those in power to protect the entity that has given them their power. Thus, there is no motivation for those who make the laws to make it easy to sue the State, the very entity which writes their paycheck. Following true to human nature, the State of Iowa has, out of one side of its mouth, consented to be sued, but out of the other side of its mouth, made it a limited and cumbersome process, fraught with pitfalls for those seeking to hold offending government officials accountable. This has resulted in a legal system that gives an unfair advantage to the government and offending employees and entities: the result, no meaningful consequences to misconduct. Without meaningful consequences, significant change is impossible.
Notably, the Iowa Legislature has the power to level the playing field and demand accountability for government entities, agencies, and employees who violate citizen’s constitutional rights. The Legislature could easily prohibit racially disparate law enforcement conduct such as pretextual traffic stops. The Iowa Legislature could authorize civil lawsuits against offending prosecutors who use the criminal justice system in an illegal and unethical manner. The Iowa Legislature could remove the special protections given to law enforcement that inhibits the truth-finding process by modifying or eliminating the Law Enforcement Bill of Rights. The Iowa Legislature could grant broader consent to being sued for misconduct by law enforcement officers with substantive, adequate remedies available to those wronged. The Iowa Legislature could consent to the imposition of meaningful remedies by those who are wronged that would have a substantive, deterrent effect on misconduct. They have the tools available to address misconduct and disparity meaningfully, yet they continue to stand idly by, squabbling about their political, philosophical differences.
At GRL Law, we do not want to highlight and complain about these injustices; we aspire to office solutions. Looking at the contributing factors to the misconduct and bias that plagues our judicial system, GRL came up with the following practical, workable, meaningful solutions:
- Outlaw Pretextual Stops and Racial Profiling. Call it out. Denounce it. Make it clear that it is unacceptable. The traditional counter to outlawing pretextual stops is the question, “how do you enforce it?” Worry about enforcement later. Take steps to admit it exists and candidly denounce it publicly. That is the first step in the right direction. Enforcement will follow.
- Mandate collection and reporting of all traffic stop data. What gets measured gets minded. If law enforcement knows their statistics will be monitored, they will pay attention to how they perform their jobs. All traffic stops should be reported, logged, and preserved. The information readily available from an individual’s driver’s license through the bar code can be easily combined with the traffic stop data for easy analysis and reporting. This results in actionable data that can be used to train and address both explicit and implicit biases that currently exist in law enforcement. Anyone with elementary competency in computer programming could put this system in place, considering all of the desired data is already being collected and reported in one form or another.
- Specifically consent to be sued for assault and other violations of constitutional rights of Iowans. Currently, the Iowa Tort Claims Act protects the State from being sued for assaults committed by their employees and similar constitutional violations. If we truly care about ending abuses, why not prove the government cares by allowing the government to be held accountable when its employees break the law. Especially, when they unjustifiably and intentionally cause bodily harm to another individual. Every other business is legally responsible for the misconduct of its employees occurring within the scope of their employment. The government should be as well.
- Authorize attorney fees and punitive damages. Authorize awards of attorney fees for all successful lawsuits arising out of a violation of an Iowa Constitutional Right and authorize punitive damages for willful and wanton misconduct involving the violation of Iowans’ well-established constitutional rights. When employees, supervisors, and leadership make the statement that they will be held accountable to the fullest extent possible, they will similarly do everything in their power to prevent misconduct from occurring in the first place. Absent significant consequences, the motivation to train, supervise, and otherwise prevent misconduct simply does not exist. Incentivize true leadership and supervision by imposing legitimate and meaningful consequences.
- Eliminate absolute immunity. Treat governmental actors within the judicial system like any other business or person. Permit citizens to sue and recover damages caused by the state actors’ malicious or intentional conduct even within the judicial system. The judicial system must not be a haven for government misconduct if we genuinely intend to make meaningful change. It is hard to fathom how absolute immunity for intentional misconduct serves any legitimate ends of justice. Eliminate it for intentional misconduct within the judicial system.
There is a saying first uttered by individuals much more intelligent and qualified than this author. “It is not what you preach, but what you tolerate that defines you.” These are powerful words that absolutely sum up the issues of police misconduct and racial disparity in our justice system. It is easy and comfortable to preach. It feels good to verbally condemn evil. Everyone is doing it these days. However, as any parent knows, words do not modify behavior. Meaningful, sensible action is what is necessary for substantive change to occur. Action that rewards positive behaviors and imposes timely and meaningful consequences to misconduct is the only way to create actual, quantifiable, substantive, and positive change. Unfortunately, until our Legislature is willing to take meaningful action, many words will be spoken, but the result will continue to be the same tragic tolerance of misconduct.