Police Reform Without Qualified Immunity Reform Is Worthless

Lawmakers have reportedly taken any changes to qualified immunity off the table.

The bulk of the American public supports qualified immunity reform. It's not hard to see why: The legal doctrine allows state officials to violate your constitutional rights without fear of being sued. It has emboldened cops to commit some shocking misdeeds: killing innocent people, shooting children, beating people needlessly, and outright stealing hundreds of thousands of dollars. It is at the very foundation of our culture of police un-accountability, which destroys trust and makes it more difficult for good officers to do their jobs.

So, naturally, the Senate has reportedly taken reform off the table, according to three people familiar with the discussions. 

The proposal was part of the Justice in Policing Act, the legislation in the works since the death of George Floyd. Outright abolishing the doctrine was always a tough sell among Republicans. But Sen Tim Scott (R–S.C.), who is leading GOP negotiations, floated a compromise that would make law enforcement departments, not individual officers, liable for misconduct claims.

Though his proposal frustrated advocates who want to see more individual accountability, others thought it might be a decent middle ground, as many cities already indemnify officers against having to pay damages: out of $730 million in judgments awarded to police conduct plaintiffs between 2006 to 2011, individual officers paid a grand total of 0.02 percent, according to Joanna Schwartz, a law professor at UCLA, who surveyed 44 of the largest police agencies across the U.S.

But last month, we learned the National Sheriffs' Association met with Scott and Sen. Lindsey Graham (R–S.C.); they objected to the idea that their departments would have to take the heat for the actions of supposed rogue officers. Shortly thereafter, the National Association of Police Organizations sent its members a message headlined "Urgent, Action Needed! Senator Booker Proposes Horrible Police Reform Bill."

Law enforcement groups claim that abolishing or even limiting qualified immunity in any meaningful way would spur an avalanche of frivolous misconduct lawsuits. But without qualified immunity, plaintiffs would still need to prove before a judge that their constitutional rights were violated by a police officer or other government official. Qualified immunity doesn't determine the outcome of a civil suit, it simply allows government officials to avoid being sued altogether. Abolishing it won't make government officials liable if plaintiffs fail to prove that their rights were violated. 

The legal principle of qualified immunity says that, in order to sue most state actors in civil court, the alleged misbehavior and the circumstances surrounding it must have previously been ruled unconstitutional in a prior court precedent. That means that cops can, for example, throw explosives into an innocent person's home and not have to pay for the damages if there is no prior ruling discussing such behavior. (That actually happened.) It also means that had the city of Minneapolis chosen to not settle with George Floyd's family, Derek Chauvin—the former Minneapolis Police Department officer convicted of murdering him—could have skirted the impending lawsuits if the Floyd family failed to present a perfectly identical precedent.

The latter speaks to the heart of why so many argue qualified immunity reform is an imperative: Chauvin is the exception, not the rule. As I wrote after his conviction, misbehaving police officers are almost never prosecuted; when they are, a conviction is even rarer. That leaves victims with one final road to justice—civil court—which they often find blocked off before they can state their case to a jury. 

"Ending qualified immunity would simply allow more victims or their families to receive restitution," writes Evan Johnson, a former Washington, D.C., police officer, in The Hill, "and give agencies more financial incentive to ensure the officers they put on the street respect the rights of those they serve." On the latter point, perhaps an insurance market would make sense, where departments assess the risk of repeat offenders—like, for instance, Derek Chauvin.

"The bottom line is that policing reform without qualified immunity reform is going to be mostly hollow and ineffective," says Jay Schweikert, a research fellow with the Cato Institute's Project on Criminal Justice. "If you don't have accountability in place, then in some sense it doesn't matter what other rules Congress implements." In the context of the Justice in Policing Act, legislators also hope to address things like no-knock warrants and racial profiling. "If those rules can be violated with impunity," adds Schweikert, "then they're not actually protecting anyone."