The civil side of excessive force

Recently the Solicitor for the Ninth Circuit, Scarlett Wilson, determined there wasn’t enough cause to criminally charge the correctional officers responsible for Jamal Sutherland’s death at the Charleston County Detention Center. An investigation found that while “clear negligence” by the correctional officers was a factor in Sutherland’s death, there was no finding of criminal intent.

Clearly the State legislature need to draft an excessive force law to seek justice in cases such as Sutherland’s. The State has a law that addresses the civil legal implications of negligence by government employees but it is inadequate in providing proper damages. I am referring to the South Carolina Tort Claims Act. The Act is the “exclusive (State) remedy for any tort committed by an employee of a governmental entity” unless the employee’s conduct was “outside the scope of his official duties or constitutes actual fraud, actual malice, intent to harm or a crime involving moral turpitude.” Unless one of these conditions may be proven, the government employee as well as their employer will enjoy limited immunity from liability.

Where the Act fails us is that the plaintiff is barred from recovering punitive damages. Punitive damages are those damages awarded to punish the defendant. In many cases where government negligence is involved, punitive damages are the bulk of the award. Punitive damages are meant to deter others from engaging in similar conduct which formed the basis of the lawsuit. As the Act is presently written, punitive damages are excluded thus providing no motivation for government employees from committing similar acts. The only way around this is to file a federal action for deprivation of rights under 42 U.S.C. Section 1983. This is a considerably more involved process and deters many from seeking the justice they deserve after being wronged by a government employee’s negligence.

The State Legislature must revise the Act to remove this bar to recovery.