Qualified Immunity

Why Bad Cops Aren't Punished: The Case Against Qualified Immunity

Police officers shouldn't be above the law.

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Following the police killing of George Floyd, the once-obscure legal doctrine known as qualified immunity has been thrust into the national spotlight.

The judge-made doctrine effectively shields police from most civil lawsuits unless their specific conduct has been "clearly established" as unconstitutional in a previous case.

"You know, there's an old adage, ignorance of the law is no excuse," says William Baude, a professor at the University of Chicago Law School. "The one group of people for whom it is an excuse are the government officials who…should know what they are and aren't supposed to do."

This sweeping protection, which was never voted on or signed into law, evolved over decades of judicial actions to give government officials room to make judgment calls without fear of lawsuits.

"The court can fix it anytime," says Baude. "But Congress can also fix it. Because it's just an interpretation of a statute that Congress wrote, Congress also has the power to step in…to either change the doctrine or repeal it entirely."

The Supreme Court recently dealt a blow to reformers by declining to hear a set of cases questioning the constitutionality of qualified immunity. Currently, the only hope for quick reform is legislation like the Ending Qualified Immunity Act, co-sponsored by Rep. Justin Amash (L–Mich.).

"I don't think reforming or even abolishing qualified immunity is going to change all the problems we have with policing in this country," says Baude. "There's a lot of research that police unions are another huge part of the problem because they make it really hard to hold bad apples accountable….But I do hope that by creating the sense that the police are not above the law, that it could sort of lead to some of the bigger cultural changes we probably need."

Produced and edited by Meredith Bragg; protest footage by Mark McDaniel, Zach Weismueller, and Paul Detrick. 

Photo credits: Image of Sport/Newscom, Anthony Behar/Sipa USA/Newscom, Graeme Sloan/Sipa USA/NewscomKaren Neoh/Flicker, Tom Williams/CQ Roll Call/Newscom, Aaron Guy Leroux/Sipa USA/Newscom, Everett Collection/Newscom, Doug Mills/picture alliance / Consolidated/Newscom, Brian Branch Price/ZUMA Press/Newscom, Adolphe Pierre-Louis/ZUMA Press/Newscom, Stefani Reynolds/CNP/AdMedia/Newscom, Joel Marklund/ZUMA Press/Newscom, John Rudoff/Sipa USA/Newscom

 

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  1. “I don’t think reforming or even abolishing qualified immunity is going to change all the problems we have with policing in this country,” says Baude.

    It probably won’t change much at all. I still submit that if we magically eliminated qualified immunity for… police officers (although ending QI should apply to any and all government bureaucrats– good luck with that) they’d just get a kind of malpractice insurance paid for through their union dues.

    You have to personalize wrongdoing, not turn it into another bureaucratic process that’s handled in the background.

    1. Liability insurance I believe is key. At some point, a repeat offender would become uninsurable regardless of how willing other officers would be to have their dues eaten up by rising premiums.

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    2. DR(P) is correct. Eliminating qualified immunity won’t punish the bad cops as they are subject to “defense and indemnification” from their employers.

      1. Without QI, departments will have a much stronger financial incentive to get rid of officers with multiple judgments against them. Where some form of liability insurance is involved, the insurers would push for this.

        1. Good point, MatthewSlyfield. While putting an end to any rogue cops receiving Quantity Immunity is not an end to the problem in itself, it’s definitely a step in the right direction, if one gets the drift.

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        2. Regrettably, that assumes that the city administrations that depend, in part, on the backing of police unions for re-election AND on the feeling of victimization felt by the urban poor, give a fat damn about budget.

          There really is very little evidence that they do.

          1. They can’t print their own money and they cant’ go into infinite debt. Sooner or later they will be forced to care about the budget.

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    3. It’ll make police back off, which will be good for some and bad for others.
      It will further insulate judges and political hacks from the consequences of their decisions.
      It’ll give lawyers even more money and power.

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    4. You are exactly correct. But forcing officers to get professional liability insurance and throwing out QI is still a big step in the right direction.

      1) It would allow victims and their families to sue for civil rights violations and recover damages. It’s important for the justice system to weigh in strongly when constitutional rights are violated. The most recent SCOTUS QI decisions basically gets cases dismissed right in the beginning.

      2) Create market forces that make it more expensive for bad cops to get the insurance. Even if someone else (like union dues) pays for it it still creates pressure in the right direction.

      1. This right here. Getting rid of QI is not a silver bullet but it will produce incremental reform.

      2. Would you be willing to allow the officer to collect from the complainant, the amount requested, if the suit shows no police misconduct? Fair is fair.
        Anyone, with more than two functioning brain cells knows that these suits would be as sustainable as current complaints about excessive force, which rarely result, even with civilian review boards, in a finding against the officer.
        Derek Chauvin is reported to have had 19 complaints. Even with a civilian review board, as in Minneapolis, he only ever received a single letter of reprimand – the mildest of rebukes.
        If the cops must face what will be akin to SLAPP suits, they should be able to profit from the phonyness of these complaints, which are most often filed in an attempt to get charges dropped.

        1. Except right now, the officer doesn’t pay a cent at all. The department/municipality is required to cover the officer’s legal defense. Leave that in place.

      3. Police departments should have better screening policies for people who wish to become cops, in the first place. Just simply going through the course and taking the necessary exams is not enough. A thorough screening of prospective cops to begin with would also be a big step in the right direction.

        Secondly police unions should also be tough on rogue cops, discipline them if they abuse their power, and, if need be, permanently dismiss them from their respective departments, and see to it that rogue cops don’t just simply get qualified immunity and transferring to another department(s).

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  2. Abolish public employee unions. In an area where you can bribe or threaten your boss – an elected official – you can literally get away with murder.

    1. You can’t abolish unions, but you can deny collective bargaining

      1. Right you are.

  3. But Congress can also fix it.

    State legislatures can also fix it, can’t they?

    1. The number of legislators who can fix it, but won’t, is legion.

      Can’t wait to find out how many of them will still get reelected in November.

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    2. No, state legislatures can not abolish QI in federal lawsuits in federal courts.

    3. “State legislatures can also fix it, can’t they?”

      Not really. Qualified immunity is the result of Supreme Court interpretations of a federal statute, 42 USC 1983, and it primarily applies in lawsuits alleging violations of Section 1983. State legislatures cannot change that. Congress can, but not state legislatures.

      What state legislatures can do is to pass laws similar to Section 1983 that allow people to sue in state courts for violations of rights under the state constitution and make it clear that qualified immunity does not apply in those cases. That’s what Colorado just did.

      1. Colorado went a good bit further than eliminating QI. I looked up an article on it. Apparently under the new Colorado law local departments/governments are only required to indemnify the officer if the officer had a good faith, reasonable belief that his actions were lawful. That’s big. In most jurisdictions now, officers get full indemnification against lawsuit judgments no matter what.

  4. No QI
    No unions
    No records secrecy

    1. I totally agree with the ideas of no QI, and no records secrecy, but I disagree with the idea of the eliminations of police unions. Unions, in general, can and often enough serve a good purpose–to protect against unfair labor practices such as retaliatory firings/layoffs, and to make sure that workers receive a living wage, in order to sufficiently support themselves and/or their families, assuming that they have families.

      1. Public sector unions are different.

  5. Cops are heroes, that’s why the chief of a little village has 4 stars on his collar and more medals than Patton. You can’t expect them to be fair and reasonable with peons like us.

  6. Don’t overstate the effect of qualified immunity. We need also to address the statutory protections that make it difficult to remove miscreant police officers. We also need to address statutes that require taxpayers to pay for the legal defense of miscreant police officers when they are sued, and to reimburse them for compensatory damages assessed against them. In New Jersey, reimbursement is mandatory for officer negligence, and permitted for intentional wrongdoings of officers.

    Also remember that qualified immunity applies only to lawsuits brought under the federal civil rights statutes. We also need to address immunity that may apply under state laws.

    Correcting qualified immunity is the first step, But be under no illusions that it is sufficient in enough itself.

    1. A journey of 1,000 miles begins with a single step.

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  8. Regarding this Qualified Immunity, be it for police officers or ANY PUBLIC EMPLOYEE, what is this crap. Another of the Supreme Court’s mistakes?

  9. As memory serves, the feds have in the past, brought action against unions and or their officials. Exactly what is sacred, untouchable about police unions and their officials? What indeed?

  10. Sue them for what? Cops don’t have any money!

  11. Hysterical. Every one of you so called libertarians is all for holding the cop accountable. George Floyd’s killer cop will be in jail for the rest of his life. The guy in Atlants that did zero wrong will now be put on trial, and be acquitted (riots delayed not denied) but facing consequences anyway. But Andrew Cuomo, who’s order of Covid-19 patients being put into Nursing home killed thousands (essentially a mass murder) and so far not one article on reason saying he should even be fired, no less go to prison. It is why you are cosidered quack idiots

    1. Putting Covid-19 patients into nursing homes with more vulnerable elderly people was an absolute and major humdinger on the part of NY State’s Governor Andrew Cuomo.

      However, that doesn’t mean that cops should get QI for abusing their power.

    2. Pointing out that a liberal Democrat caused the deaths of thousands is exactly how White Supremacy works!

      /sarc

      1. Ha ha ha ha! Abolishing Qualified immunity for cops is not an end in itself to the problems of police brutality, but it’s definitely a huge step in the right direction, if one gets the drift.

  12. The answer is to ban unions in the public sector.

  13. The big question seems to be are we willing to pull law enforcement back out of high crime areas and allow criminals more freedom to ply their trade. There is a reason complains come from areas where police are forced to interact more with the public then in areas where their is little or no crime. There are many cases of police officers treating someone reasonable that have ended with the officer shot or injured. Making the interaction safe for the officer can sometimes take force with people that don’t comply. Apparently we are giving up on reforming communities of high crime and will instead bring peace with less policing and enforcement of laws. If we are going to have less policing it would be prudent to obtain a conceal carry permit and be willing to protect yourself and family. As we have seen in the past weaker policing will allow crime to rise significantly.

    1. I agree with you, dan1650. Contrary to what a lot of people believe, cops are needed, whether anybody likes them or not. Sometimes, when a lawbreaker/criminal is so totally out of control, a certain amount of force is necessary, but rogue cops who abuse their power should absolutely NOT receive QI and be allowed to continue as they’re doing–using excessive force on lawbreakers and suspects.

      I do not agree with the idea of just anybody carrying a gun around, because handguns and assault rifles really DON’T belong in civilian hands. That would make this country look like the Old West and the Frontier, which would not be desirable, either.

  14. Does qualified immunity immunize a officer against a civil suit?

    1. If Qualified Immunity does immunize an officer against a Civil Suit, then it shouldn’t. If it does, however, that’s all the more reason for abolishing Qualified Immunity, which would at least be a start.

  15. The thing about Qualified Immunity is that cops need something of the sort. A cop who does something that makes perfect sense given what he knows (or should know) at the time should be shielded. The problem arises from the scope that QI has assumed. There should be some sort of reasonable man/basic competence standard. IF a group of cops break into a house they have serious reason to believe harbors an armed and dangerous criminal, and they are wrong through no fault of their own, they should have SOME protection. OTOH, if they do the same thing on the unsupported word of a snitch of questionable veracity, or just plain get the address wrong through carelessness, they deserve to be hung out to dry.

    Dial back on QI, dial WAY back on no-knock warrants and dynamic entry tactics, and establish in law and precedent that if there should be video and there isn’t then the testimony of police is considered worthless, and much of the problems will go away.

    Yeah. Not holding my breath.

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  16. SO the ivory tower prof does not prophesy any good comes of prosecuting murderers. How much consideration was given the good cops ambushed and killed in collectivized blanket retaliation against people who resemble the perps?

  17. No, they are not not immune to litigation. They are protected if:
    a) they are acting within their prescribed duties.
    b) they may be reacting to perceived threats
    c) their reaction is appropriate to the threat.
    Do we really want to reduce the police recruits to the lowest common denominator? Have some sense! I despair!

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  20. Does it take a bit of the steam out of this conversation if George Floyd died of a Fentanyl induced heart attack at the hospital and not of asphyxia in the street while being restrained by the police?

    Doesn’t this become the case that proves the need for QI, to prevent innocent cops from being sacrificed on the alter of political correctness?

    How many cops are going to have their lives destroyed in Kenosha because a child molester high on meth was able to fight them off and attempt to get into his car either to reach for a weapon or escape with children to do who knows what?

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