Abolishing Qualified Immunity Could Hinder Police Officers from Doing Their Jobs: Police Groups

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
July 24, 2020Updated: July 25, 2020

Police groups are concerned that making it easier to sue police officers for damages would cause them to pull back in their jobs, which could impact communities and public safety in the long run.

“To take away qualified immunity from people that really go out there and really take their oath seriously, it’s going to make police officers not want to do a goddamn thing,” Joseph Imperatrice, the founder of Blue Lives Matter NYC, told The Epoch Times. Blue Lives Matter NYC is an organization working to support police officers and their families.

“And it’s the people that are going to suffer the communities where these police officers are in. There’s not going to be anybody in their right mind that’s going to go out there and put their hands on somebody and try to put somebody under arrest if there’s a good possibility that they’re going to lose their house because of it.”

“Qualified immunity” is a Supreme Court-made doctrine that shields government officials from liability for damages claims for harm caused by their actions as they perform official duties. The doctrine is the subject of scrutiny because critics say it prevents officials from facing consequences of misconduct or abuse of power if those actions violated the U.S. Constitution but did not contravene a “clearly established” rule.

The doctrine was put in the spotlight following the death of George Floyd, who died during an arrest by a Minneapolis police officer, leading to protests calling for increased police accountability. Members of legal circles, advocacy groups, the judiciary, as well as politicians have raised concerns about the doctrine’s application.

Qualified immunity has also been placed front and center amid recent discussions for police reform. Multiple state legislatures are considering doing away with the protection for state and local police and correctional officers. In Colorado, a bill that bars qualified immunity as a defense for police officers, bans chokeholds, and requires all officers who interact with the public to wear body cameras was signed into law in June.

Meanwhile, some police reform bills introduced in congress by lawmakers on both sides of the aisle also advocate for removing or limiting the doctrine.

A recent Pew poll found that two-thirds of Americans say that people need to have the power to sue police officers to hold them accountable for misconduct or excessive use of force. Only 32 percent of the respondents say police officers need to be protected against civil lawsuits for them to do their jobs effectively.

Rob O’Donnell, a former New York City police detective and board member of Brothers Before Others, said the doctrine is not unlimited as it does not cover negligence, criminal acts, or acting out of the scope of one’s authority.

“What qualified Immunity does is protects not only police officers, but all public servants such as teachers, politicians, judges, prosecutors, fireman [sic], and many others who act within policy in good faith,” he told The Epoch Times in an email. “[There] needs to be a blanket of security if we expect these individuals to do jobs such as policing.”

Imperatrice explained that when officers are sued, cities usually go through a review to determine whether he or she had acted properly and within the scope of their authority before deciding to provide indemnification.

If officers, he said, are found to have acted criminally or against guidelines in a department investigation, they would have to face the legal repercussions where the city will not provide indemnification. He added that there’s really no reason to reform the protection if cities already have such measures in place.

He also added that qualified immunity protection is also crucial because it prevents individuals from filing frivolous or retaliatory lawsuits against police officers.

“When police officers go out there to do their job, there are a lot of times that the bad guys will sue as a retaliatory offense,” Imperatrice said, adding that those types of lawsuits are common.

Epoch Times Photo
Police take back the streets at around midnight after firing copious amounts of tear gas to disperse protesters and rioters outside the Minneapolis Police 5th Precinct during the fourth night of protests and violence following the death of George Floyd, in Minneapolis, Minn., on May 29, 2020. (Charlotte Cuthbertson/The Epoch Times)

Criticisms of Qualified Immunity

The doctrine was created by the Supreme Court in 1982 as part of the top court’s interpretation of 42 U.S.C. § 1983, commonly known as Section 1983, which provides a basis for people to sue state officials who violate a person’s constitutional rights. However, under the Supreme Court’s current interpretation of the law, it is not enough to show that the rights are violated.

Victims must also show that the action was “clearly established,” and if they fail, the official could be granted qualified immunity. The “clearly established” rule, which is seen to be problematic by critics of the doctrine, requires the party suing the official to show that the facts in their case were sufficiently similar to the facts in prior court cases.

Critics say qualified immunity has routinely shielded those who are either incompetent and who knowingly violate the law, such as when courts granted immunity to officers who stole over $225,000 (pdf) and to an officer who shot a 10-year-old child while trying to shoot a non-threatening family dog (pdf).

Robert McNamara, senior attorney for the Institute for Justice, criticized the doctrine for failing to hold police officers accountable for violations of constitutional rights. The Institute for Justice runs a Project on Immunity and Accountability that aims to challenge the qualified immunity doctrine and restore accountability for officials’ misconduct.

“The entire point of having constitutional rights is that they be enforced. Having a doctrine that says your rights may well have been violated, but we’re going to choose to do nothing about it, turns the constitution into an empty promise,” McNamara previously told The Epoch Times.

When deciding whether to grant qualified immunity to a government official, courts embark on a two-prong test. They first have to decide whether a constitutional violation had occurred and then decide whether the right was clearly established.

Legal experts say many cases fail the “clearly established” barrier as it is not easy to show that the conduct and circumstances in the current case are sufficiently similar to ones in another previous case.

McNamara said he believes this test has turned the inquiry into constitutional cases “into almost a farce.”

“Lower courts engage in this kind of mechanistic quest to find another published federal opinion in which exactly the same facts have occurred, which is frequently impossible to do because the world is complicated and no two cases will have exactly the same facts,” he said. “As a result, the outcome of these cases is essentially arbitrary.”

The Supreme Court this term had the opportunity to revisit the controversial doctrine in a number of cases that presented the issue to them. But the top court declined to review any of the cases.

The court’s decision to dismiss the cases wasn’t entirely unanimous. Justice Clarence Thomas, who has previously criticized the doctrine, wrote a dissent (pdf) in one of the cases, Baxter v. Bracey, saying that he would have granted the petition to review the case because he believes the doctrine strays from the statutory text of Section 1983. The Baxter case involves officers who released a police dog on a suspect to arrest him. In the process, the dog bit the suspect. The suspect alleged that he had already surrendered when the dog was released to arrest him.

He also commented on the “clearly established” rule, arguing that “there likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe.”

“Leading treatises from the second half of the 19th century and case law until the 1980s contain no support for this ‘clearly established law’ test. Indeed, the Court adopted the test not because of ‘general principles of tort immunities and defenses,’ but because of a ‘balancing of competing values’ about litigation costs and efficiency,” he wrote.

Qualified Immunity Bills

Several members of Congress have introduced bills seeking to eliminate or limit the doctrine. One of the bills—Ending Qualified Immunity Act—introduced by Reps. Justin Amash (L-Mich.) and Ayanna Pressley (D-Mass.) seek to “eliminate qualified immunity and restore Americans’ ability to obtain relief when state and local officials, including police officers, violate their legal and constitutionally secured rights.”

Similarly, several lawmakers introduced the Justice in Policing Act of 2020 that would bring reforms to qualified immunity to lift barriers for individuals from recovering damages when police violate their constitutional rights.

Sen. Mike Braun (R-Ind.) also introduced the Reforming Qualified Immunity Act in June that limits some of the protections for public officers from civil lawsuits, making it harder for police officers to claim the immunity. His bill has faced pushback from police groups and unions after he suggested some law enforcement officials in the state he represents support his bill.

The Indiana State Police Alliance said in a statement on June 30 that they weren’t contacted for consultation during the development of the bill, adding that they oppose abolishing qualified immunity for law enforcement.

“The protection aids officers in carrying out their duties and obligations to serve the public and enforce the law. While there is no doubt that bad actors have brought this issue to the forefront, we believe qualified immunity serves to protect all police officers legitimately performing their duties, and it allows the public to recover damages in cases where a police officer has violated the person’s rights,” reads the statement, which was signed by the group’s president, Scott Krueger, and executive director Cory Martin.

“It allows police officers to perform their duties, to perform their duties, to the best of their knowledge and ability, without constant fear of having to defend themselves from frivolous lawsuits. Officers are judge from the perspective of a reasonable officer, given the same set of circumstances, not from 20/20 hindsight,” the group said.

The National Fraternal Order of Police also expressed it did not support Braun’s bill.

Imperatrice said he feels that the current push by politicians to pass laws to limit or abolish the protection is a “knee jerk” reaction to the pressure applied by different groups across the country.

“This is pretty much just a knee jerk reaction to the mobs and it’s not logical. It’s one of the most unethical things a politician could even consider at this moment,” Imperatrice said.