Nearly three years after high-profile police-involved deaths of Black people forced more Americans to recognize that police brutality has disproportionately impacted Black communities, qualified immunity continues to be a hot button issue for legislators and police reform advocates.
Capital B wanted to better understand how this legal doctrine plays out for Black victims of police violence. Following the deaths of George Floyd in Minneapolis and Breonna Taylor in Louisville, Kentucky, police accountability has been debated since the height of the COVID-19 pandemic. But the term qualified immunity has been improperly sprinkled into those conversations whenever an officer isn’t indicted in criminal court, when the legal doctrine only applies in civil cases.
Devon Carbado, a law and African American studies professor at UCLA School of Law, and Delores Jones-Brown, a professor in the Department of Law, Police Science and Criminal Justice Administration at CUNY’s John Jay College of Criminal Justice, helped us break down qualified immunity and why we need to understand its implications.
What is qualified immunity?
Qualified immunity is a “judge-created rule that protects government officials, including police officers, when they are sued,” according to the NAACP Legal Defense Fund.
The doctrine has been used in many cases to protect officers who have been accused of misconduct, including excessive use of force and fatal shootings.
“The doctrine holds that officials who violate other people’s constitutional rights can only be held responsible if there exists a previous court decision, with very similar facts, that resulted in other officials being held accountable,” according to the LDF.
Several nonprofit organizations, including Black Lives Matter Grassroots, corporations such as Ben & Jerry’s, and civil rights law firms such as the LDF, have joined the fight to end the legal doctrine.
What are the origins of qualified immunity?
It’s not a law, nor is it written in the U.S. Constitution. The phrase was introduced in April 1967 by U.S. Supreme Court justices. The all-white-male panel decided, in Pierson v. Ray, that while a group of Black and white clergymen had their civil rights violated when they were arrested by police in Jackson, Mississippi, for occupying a whites-only waiting area of a bus depot, they could not sue the officers for the arrests.
The 8-1 vote kicked the case back to the lower court to decide whether the police officers’ arrests were illegal. The lone dissent, written by Justice William Douglas, noted that the Ku Klux Klan Act of 1871 says that “every person” without exceptions who are acting under the color of law and violated the law are to be held liable. Douglas also highlighted that the Supreme Court should have made a full and not partial decision in the clergymen’s case because “some state courts have been instruments of suppression of civil rights and were partially responsible for the wrongs to be remedied.”
When Douglas wrote his dissent, note how he cited a previous case in order to make his argument. Experts say that’s the key to disqualifying a police officer from qualified immunity, but it can be a tricky task.
Since the court’s ruling, qualified immunity has garnered definitions and synonyms such as an exception rule, legal principle, or doctrine. During the 1980s, the Supreme Court ruled on more cases that expanded qualified immunity to other law enforcement and professions such as government officials and school administrators.
How difficult is it to argue that an officer should be held accountable in a civil lawsuit?
In order to disqualify a police officer from qualified immunity in a civil lawsuit, there had to be a prior ruling where the actions of a police officer — in the same jurisdiction and with identical circumstances — have been ruled unconstitutional or illegal.
The law thrives on looking to the past to figure out the future. Attorneys do extensive research before filing a lawsuit to know if what happened to their client happened before to know if their case will be successful. If a case has enough legal standing to proceed and hasn’t been decided before, through litigation, it can become a precedent.
Jones-Brown says that, for example, once a police department has been put on notice that using a particular police-trained technique is banned and another officer uses that same technique anyway, then that officer “should not then be able to take advantage of qualified immunity because notice went to the profession.”
But even with laws and policies, it doesn’t stop misconduct from happening, right?
In 1993, the New York City Police Department banned the use of chokeholds, or carotid holds. A year later, Anthony Baez was choked to death by a Bronx officer who was eventually acquitted of state criminal charges, fired after a departmental trial, and sentenced to seven years in federal prison for violating Baez’s civil rights. Twenty years after Baez, Eric Garner was choked to death by a Staten Island officer who was also fired after a departmental trial.
For Garner, “nothing happened criminally to the officer, but the department had to pay out the money because knowledge is already available in the profession that these kinds of restraint techniques can cause death,” Jones-Brown said.
A New York state judge approved a $4 million settlement in 2017, and the city settled for $5.6 million in 2015 with the Garner family. The city previously settled with Baez’s family for $3 million.
But when it comes to qualified immunity, there are far and few cases of police misconduct that have been ruled illegal or unconstitutional for future cases to automatically disqualify an officer from receiving the legal protection. As a result, attorneys defending an officer can argue that qualified immunity should be granted because their client was doing their job and acting in good faith under the law at the time of the alleged misconduct.
“People may be overly optimistic about the ability of the removal of qualified immunity to achieve the desired effect that is going to reduce the kinds of police behavior that we want to hold them responsible for, whether we’re talking about holding them responsible civilly or criminally,” Jones-Brown said.
Eliminating qualified immunity from the record is just the beginning to changing police behavior, Jones-Brown said. Regular de-escalation and implicit bias training may lead to positive results, as was seen in 2020 by Newark, New Jersey’s police department, which didn’t have any police shootings.
Why are some lawmakers against passing two pending federal bills?
The George Floyd Justice in Policing Act and the Ending Qualified Immunity Act are calling for the end of qualified immunity for law enforcement officers. Both bills were introduced following Floyd’s murder. The former bill passed a vote in the House, and despite President Joe Biden’s call for the vote to push through the Senate, it still lingers. The latter bill was reintroduced in March 2021 and is still sitting in the House.
A part of the discussion about keeping qualified immunity on the books is the concern that police officers will feel like they cannot do their jobs effectively under threat of a lawsuit.
Carbado says that police officers are already protected by law. The Fourth Amendment is “an entire body of law that assumes, in many instances, police officers will make mistakes, and that the question is whether or not the mistakes are reasonable.”
“So we don’t need qualified immunity for that. … Thus, the concern that qualified immunity is necessary to ensure that police officers are permitted to make a reasonable mistake is not persuasive,” he said.
“Another set of concerns that people have is that when you sue police officers, you are effectively going to bankrupt them. That’s not persuasive because studies have demonstrated that when police officers are sued, and people win those lawsuits, who pays? Typically, local government, not police officers,” Carbado said.
Of the 167 publicly reported police misconduct lawsuit settlements that the National Police Fund Database tracked since 2009, over $2.2 billion has been paid out. Most jurisdictions have indemnity laws that allow the government to absorb an officer’s portion of a settlement.
Politicians “are afraid that people won’t apply for the policing job anymore and officers will quit in droves,” Jones-Brown said in reference to the Homerville, Georgia, police department’s staff of 10 that resigned in protest last month after their chief was arrested and fired over allegations of improper evidence handling and other charges.
“You’re not going to find a lot of Black people, people of color, who are in the policing profession who are doing this quitting en masse, but you will find lots of white men who will quit their department en masse when you question their authority,” Jones-Brown said. “Powerful white men expect to be supported by other people, particularly other white men.”
She says politicians, who may agree to end qualified immunity, won’t vote for it on the record out of fear that their constituents may not vote for them again if crime rises and officers start quitting. There’s also a concern of losing the endorsement of police unions.
What are local governments doing?
“As we move in the direction of shifting the way policing operates today, all the levers of power should be used. So we shouldn’t just wait at the Supreme Court. We shouldn’t just wait on Congress. We should also think about state courts. We should also think about administrative regulations,” Carbado said.
Last week, the Supreme Court declined to listen to a case of a man who was arrested for allegedly making fun of an Ohio police department on Facebook. The jokester was acquitted after trial but was blocked from suing because of, you guessed it, qualified immunity.
In recent years, states such as New Mexico and Colorado passed legislation to amend qualified immunity on the local level for government officials and peace officers, respectively, who were found by their employer to have violated an individual’s constitutional rights. With these reforms, families and victims of police violence can file a lawsuit in state court where they don’t have to go through the legal hoops qualified immunity causes if a federal lawsuit is filed.
The Colorado law narrowly passed the buck to the officer. The officer has to pay 5%, or $25,000, of the settlement amount if their employer found that their actions were not in good faith but were legal. If the officer can’t pay, then their employee will pay the officer’s portion of the settlement. The New Mexico law allows people to sue police officers and other government officials without the need of a precedent case, which is at the root of qualified immunity.
Carbado says that “all the tools in the toolbox need to be used because this is a pressing public problem that goes to the core of our democracy, so I don’t think we should leave any stone unturned.”