It's Time To Get Rid Of Qualified Immunity For Police

Recently, in Minnesota, Police Officer Derek Chauvin was convicted of murder in the death of George Floyd. But that was an unusual occurrence, and only happened because the entire incident was caught on tape by an innocent bystander. Most police officers accused of murder while on the job are set free by a jury. It is almost impossible to hold them criminally liable.

Another option for holding police responsible for misconduct lies in civil court, where they would be sued for their actions. Sadly, that is also a nearly impossible task. That's thanks to something called "qualified immunity", which makes police immune from civil action for conduct on the job.

But this is something that can be corrected. Legislatures (preferably the U.S. Congress) could do away with qualified immunity. Unfortunately, that is not something that the Republicans in Congress are willing to do -- even though a majority of the American public supports the elimination of qualified immunity.

The following is part of an editorial in The New York Times by that paper's editorial board:

Qualified immunity arose out of an 1871 civil rights law that made government officials, including police officers, financially liable for violating a person’s constitutional rights. In a series of rulings starting in the late 1960s, the Supreme Court decided that an officer is immune from liability unless it can be shown that he or she broke “clearly established” law in the process. The burden is on the plaintiff to make this showing, and the bar is absurdly high: If no other court has previously ruled in a case involving an essentially identical set of facts, the law is determined to be not “clearly established.”

Examples of courts splitting hairs to give a pass to even egregious misconduct abound: the prison guard who pepper-sprayed an inmate in the face “for no reason at all”; the officer who fired at a nonthreatening dog and missed, accidentally hitting a 10-year-old child lying nearby on the ground; the officers who stole $225,000 in cash and rare coins while executing a search warrant; the officer who shot a 14-year-old boy after he had dropped a BB gun and raised his hands. . . .

The Supreme Court has justified its creation by arguing thatofficials need “breathing room” to make “reasonable but mistaken judgments about open legal questions.” That’s true, but the police already enjoy many protections for their actions, especially in situations where they make split-second decisions.

In practice, qualified immunity has become what Justice Sonia Sotomayor has called an “absolute shield” that “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

The court has also expressed the concern that individual cops will be bankrupted by judgments. This simply doesn’t happen. To the contrary, governments virtually always foot the bill for police wrongdoing. One study found that officers personally paid only .02 percent of the dollars that plaintiffs were awarded.

The problems with the qualified immunity doctrine are legal as well as practical. Initially, courts weighing claims against officers first had to decide whether the officer had violated any constitutional rights — for example, by using excessive force in violation of the Fourth Amendment. If the answer was yes, they moved on to decide whether the law regarding that right was clearly established. But a 2009 Supreme Court decision effectively eliminated that first step, allowing lower courts to jump straight to the second question, which they usually answered in favor of the cop. This creates a vicious circle: When courts stop considering what police behavior violates the Constitution, they leave both cops and civilians without a clear idea of what sorts of violations are considered clearly established. . . .

The Supreme Court started this mess, and it could just as easily end it. But despite a few recent cryptic opinions, meaningful reform doesn’t appear to be in the cards.

The more immediate solution is legislative. Congress is currently considering the George Floyd Justice in Policing Act, a far-reaching bill addressing racial discrimination and excessive force by law enforcement officers. One provision would eliminate the “clearly established” defense and prevent cops from relying on their own belief that their conduct was lawful. Unfortunately, that has become the bill’s main sticking point, as most Republicans have sided with police unions in opposing any liability for individual officers. . . .

While Congress debates, state and local governments are moving forward. In the past year, Colorado, Connecticut and New Mexicohave all passed laws barring or limiting the use of qualified immunity in certain cases involving police officers. In March, the New York City Council approved a bill that makes it easier for people to sue police officers under local law for unreasonable searches and the use of excessive force, and denies officers the defense of qualified immunity in those cases.

The bill’s opponents lobbed objections that were as familiar as they were misguided. “Ending qualified immunity will prevent the best young men and women in our city from joining the police force,” said Councilman Robert Holden of Queens. That’s like saying laws against robbery will disincentivize the best thieves. In fact, the best young men and women aren’t the ones we need to worry about.

If the rule of law means anything, it means that those sworn to enforce it should not be above it.