Do police officers pay for misconduct lawsuits? How indemnification works

When people defend qualified immunity, the argument usually arrives with a picture attached: a patrol officer, a split-second decision, and a lawsuit that could take the house, the savings, the kids’ college fund. The picture is vivid. It is also mostly wrong about who writes the check. Ask the question the doctrine rarely asks — when a police misconduct case actually pays out, whose money is it? — and the answer turns the usual argument on its head.

I.What indemnification is

A federal civil-rights suit against a police officer is usually brought under 42 U.S.C. § 1983, which lets people sue anyone who violates their constitutional rights while acting under state authority. On paper, the officer is the defendant. That is the whole premise of qualified immunity: the officer, personally, is the one being sued, so the officer, personally, needs protection.

Indemnification is the arrangement that breaks that premise. To indemnify someone is to cover a loss on their behalf. When a government indemnifies an officer, it agrees to pay the settlement or judgment in a suit arising from the officer’s job. The source of that promise varies. Some states require it by statute. Others leave it to local law, policy, or practice. Where a jurisdiction carries liability insurance, an insurer may pay some or all of the bill. In every version, the money comes from the public or from coverage the public pays for, not from the officer.

Indemnification is also usually separate from the question of who provides the officer’s lawyer, and separate from whether the city itself can be sued. The rules for suing a city directly under § 1983 are narrower and work differently; we cover them in our explainer on suing the city instead of the officer.

II.What the data show

For years, the question of who actually pays was answered mostly by anecdote. In 2014, UCLA law professor Joanna C. Schwartz published the most detailed empirical answer to date, “Police Indemnification,” in the New York University Law Review. She gathered information from 44 of the nation’s largest law enforcement agencies and 37 small and mid-sized agencies about civil-rights cases resolved in plaintiffs’ favor from 2006 through 2011.

Put plainly: in the jurisdictions studied, an officer’s personal contribution was a rounding error. Officers contributed something in a few dozen cases out of more than nine thousand, and their payments amounted to about two-hundredths of one percent of the total. The case counts and dollar totals above are as Schwartz restated them in her follow-up article, “Police Indemnification Reexamined,” which revisits the question with new data from 2018 through 2023.

One finding deserves special attention. Punitive damages are the part of a verdict designed to punish the individual wrongdoer, and juries award them only for especially bad conduct. Even there, the study found, officers did not pay.

III.Even when the rules say otherwise

A reasonable objection is that indemnification is supposed to have limits. Many indemnification rules exclude conduct that is criminal, malicious, or outside the scope of the job. If those limits worked, the officers who did the worst things would be the ones left paying.

Schwartz found they mostly did not work that way. Officers almost never contributed even when indemnification was prohibited by law or policy. Her follow-up article summarizes the earlier finding that officers did not pay even when they were disciplined, fired, or sent to prison for the conduct at issue. The formal exceptions existed on paper; the money still came from the government.

The reasons will vary from place to place. Most cases settle, and a settlement is typically negotiated with the government that will fund it rather than with an individual officer’s savings. A judgment against one person can also be hard to collect. Whatever the mix of reasons in a given jurisdiction, the pattern in the data was consistent: the exceptions written into indemnification rules rarely translated into officers paying.

IV.What Harlow said it was protecting

The modern qualified immunity test comes from Harlow v. Fitzgerald, 457 U.S. 800 (1982). The case did not involve police at all. A. Ernest Fitzgerald, a civilian analyst who lost his Air Force job, sued two senior aides to President Nixon, Bryce Harlow and Alexander Butterfield. The Court, in an 8–1 opinion by Justice Powell, held that the aides were not entitled to absolute immunity but were entitled to qualified immunity, and it rewrote the test.

Under Harlow, officials performing discretionary functions “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The Court explained why. Suits against officials, it said, carry social costs that “include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.” And, borrowing a line from an earlier case, it warned that fear of being sued could “dampen the ardor of all but the most resolute, or the most irresponsible,” in carrying out their duties.

Our analysis of Zorn v. Linton follows how that “clearly established” language became a trap for plaintiffs. This piece asks a narrower question: how well do Harlow’s own justifications hold up once we know who pays?

V.Testing the rationale against the money

Take the financial piece first. The fear the Court described is a fear of liability, of personal exposure to a damages award. The indemnification data show that, for police officers in the jurisdictions studied, that exposure was nearly nonexistent. An officer who expects the city to pay has little reason to hesitate for fear of a judgment, because the judgment is not the officer’s to pay. If qualified immunity exists to spare officers financial ruin, it is guarding against a risk that indemnification had already almost entirely removed.

The deterrence argument fares no better on the money. If officers almost never pay, the prospect of losing a lawsuit is not what is keeping able people out of police work, at least not through their bank accounts. Harlow, after all, was written about senior federal officials, not city patrol officers.

That leaves a strange result. Qualified immunity does not shift costs away from officers, because officers were not bearing them. What it does is decide whether anyone pays at all. When immunity is granted, the injured person gets nothing, and the government that would have paid keeps its money. In that sense, the doctrine’s practical beneficiary is often the public employer and its insurer, not the officer in the picture.

VI.The fair counterargument

Defenders of qualified immunity have answers, and they deserve a hearing. First, Harlow’s rationale was never only about money. The Court also named “the expenses of litigation” and “the diversion of official energy.” Being sued is time-consuming and stressful even when someone else pays the bill, and immunity can end a case before discovery and trial.

Second, near-universal indemnification is a practice, not a guarantee. An individual officer cannot always know in advance that the employer will pay, and some officers may worry about being the exception. Third, governments do pay the bills, and those costs are real public money that could otherwise go to services.

Those points are fair. But they argue for a different kind of rule than the one the Court built. Litigation burdens can be managed with case-management tools that do not require deciding that a constitutional violation goes unremedied. Uncertainty about indemnification can be solved by writing indemnification into law, as some states have. And if the concern is public money, it is worth being honest that qualified immunity saves that money by making injured people absorb the loss.

VII.What reform does with the money question

State reforms show that legislatures can address the money directly instead of leaving it to a judge-made defense. Colorado’s 2020 law, Senate Bill 20-217, created a state-law claim against peace officers who violate rights under the Colorado constitution, and it provides that qualified immunity is not a defense. It also requires indemnification, with a narrow exception: if the employer determines the officer did not act on a good-faith and reasonable belief that the action was lawful, the officer is personally liable for 5 percent of the judgment or $25,000, whichever is less. If that share cannot be collected, the employer pays the whole judgment. A public entity need not indemnify an officer convicted of a crime for the conduct at issue.

New Mexico’s Civil Rights Act took a different route: claims under it are brought against public bodies, not individual employees, and qualified immunity is not a defense. The public body pays. Both designs keep injured people from walking away with nothing, and Colorado’s puts a small, capped amount of personal accountability back in. We compare these laws, along with Connecticut’s and New York City’s, in our guide to which states have ended or limited qualified immunity.

Editorial note: This analysis is built from the cited opinions, statutes, and research listed below. It is journalism and advocacy, not legal advice. If you believe your rights were violated, talk to a licensed civil-rights attorney in your state. Corrections: contact the editor.