Posted on 05/10/2023 6:39:27 PM PDT by nickcarraway
Imagine there is a children’s birthday party in your backyard, and officers enter and shoot a child while trying to kill your dog. Imagine you’re in your bathing suit at a public pool, and, as you walk away from a police officer, he body slams you so hard it breaks your clavicle and renders you unconscious. Imagine you’re on your front porch, searching for a misplaced set of house keys, when several police officers suddenly attack and arrest you.
Imagine these police officers all get away with these horrific acts because of qualified immunity, which shields them from personal liability for their actions — even if those actions are unconstitutional. And then realize that you don’t have to imagine anything. All these incidents, and the lack of accountability that came along with them, actually unfolded in reality. And similar circumstances will continue to occur if the qualified immunity doctrine remains in place.
The myths that are used to justify qualified immunity are numerous and egregious. And the dangers of this doctrine are also abundantly clear. It’s critical to explore both in order to raise awareness about qualified immunity’s detrimental impacts, particularly on communities of color, and demonstrate why it is deeply hazardous to public safety and fundamentally unnecessary for law enforcement.
What is Qualified Immunity?
The Ku Klux Klan Act of 1871 — part of a series of Enforcement Acts established to protect Black people’s rights — allows people to sue government officials for civil rights violations. But the Supreme Court has determined that, even though this act’s provisions say nothing about officials being granted immunity, common law at the time the act was passed dictated that government officials did in fact have immunities that protected them from lawsuits. Qualified immunity is a judicial doctrine that has evolved from this reasoning. The doctrine protects government officials, including law enforcement and prison officials, from being sued unless they are found to have violated “clearly established law” — an unreasonable and deeply stringent standard that requires victims to point to a nearly identical case of unconstitutional conduct in their attempts to obtain justice.
While qualified immunity does not apply to criminal charges or prosecutions, it does impede one of the only ways civilians can hold government officials accountable: by suing them in civil court. Furthermore, it creates protections for government officials who have a long history of inflicting violence and abuse on Black and Brown communities. However, defenders of qualified immunity typically ignore this fact — and deploy a number of myths to defend a doctrine that is indefensible.
The playbook of myths perpetuated by qualified immunity’s defenders is rooted in fearmongering and a mistaken belief that state government officials somehow need more protections than they already have. And it is filled with the same tired arguments that have long been debunked.
"The playbook of myths perpetuated by qualified immunity’s defenders is rooted in fearmongering and a mistaken belief that state government officials somehow need more protections than they already have. And it is filled with the same tired arguments that have long been debunked."
MYTH #1
Law enforcement officers will face bankruptcy if qualified immunity is abolished.
It is increasingly common to hear the bankruptcy myth being touted as one of the foundational reasons justifying qualified immunity. But, it’s not actually true. Law enforcement officers are virtually always indemnified — a practice that shields officials from financial liability — regardless of qualified immunity, and rarely pay damages even when found guilty of unconstitutional conduct. Police officers do not pay for the lawyers defending them, either. The city an officer is affiliated with typically pays for police misconduct settlements, using taxpayer money.
MYTH #2
If qualified immunity is abolished or limited, a slew of frivolous cases aimed at law enforcement will hit the courts. This myth is rooted in pure fearmongering. The current legal reality and plain common sense convincingly debunk the notion that myriad frivolous cases will flood the courts the moment qualified immunity is limited or otherwise abolished. For one, various procedural safeguards exist that allow courts to toss frivolous lawsuits in early stages. These safeguards, coupled with the challenges and expenses that come with filing lawsuits — both generally and particularly against law enforcement — it’s incredibly unlikely that people will start filing frivolous lawsuits if qualified immunity is abolished. There is also no reason to believe that lawyers would accept frivolous cases, given the time and money that would be spent on a losing effort. And, of course, even if a frivolous lawsuit were filed, a case where officers did not violate anyone’s rights would fail in court with or without qualified immunity.
MYTH #3
Law enforcement officers need the protection of qualified immunity to do their jobs. This is simply not true. For one, qualified immunity only protects government officials who break the law — something that should alarm everyone. Second, there’s also an often-repeated and inaccurate myth that officers need qualified immunity so they won’t have to pay out-of-pocket if they are sued for their conduct while on the job. However, indemnification means officers are already protected from paying anything regardless.
In fact, the idea that officials somehow need more protections ignores reality. Officials retain expansive protections and wide deference in the civil and criminal legal systems. For example, officers have been granted incredible latitude when they harm and harass people through pretextual stops or uses of force. And law enforcement officers are not only given unbelievable discretion — they also routinely face little accountability across our public safety system.
These examples only reflect a small part of the expansive protections afforded to government officials. There is no evidence that law enforcement officers need an additional layer of enablement in qualified immunity to do their jobs.
MYTH #4
Abolishing qualified immunity will render law enforcement ineffective.
If officers aren’t breaking the law, there is no reason to expect that they will be penalized for their conduct. And, if they are breaking the law, they rightly should have something to worry about. Abolishing qualified immunity will help hold law enforcement accountable — at least in civil courts.
These myths are problematic precisely because they conjure an exaggerated alternate reality that is not based in fact and interprets any rollback of draconian police protections as an “attack.” And, even more concerningly, these myths ignore the very real dangers of qualified immunity. This doctrine harms actual people, erodes trust in police, and contributes to the view that law enforcement is mired in unaccountability, lawlessness, and violence.
The reality of qualified immunity is that there are clear dangers to keeping it in place.
"These myths are problematic precisely because they conjure an exaggerated alternate reality that is not based in fact and interprets any rollback of draconian police protections as an “attack.” And, even more concerningly, these myths ignore the very real dangers of qualified immunity. This doctrine harms actual people, erodes trust in police, and contributes to the view that law enforcement is mired in unaccountability, lawlessness, and violence."
DANGER #1
Qualified immunity can dissuade people from litigation, even those with undeniably valid claims. Even if someone is the victim of police abuse, qualified immunity can dissuade them from filing lawsuits. Qualified immunity cases allow officers multiple opportunities to appeal before a case goes to trial, each of which can greatly delay a proceeding for up to a year or longer. This places a huge financial burden on victims seeking justice, and in turn may lead to officers escaping accountability simply because a victim cannot financially afford to go through the litigation process. The doctrine further dissuades victims because it makes it harder for them to find lawyers to take their cases, given the doctrine’s complexity and the ensuing financial burden.
DANGER #2
Qualified immunity creates an arbitrary standard that stifles the rule of law.
Qualified immunity operates in a way divorced from actual reality. The Supreme Court has directed courts to evaluate qualified immunity cases through what it calls “clearly established law.” What this means is that, even if an officer violated a law, as long as there was no factually similar case in the past where an officer was found guilty, that officer will be protected by qualified immunity.
This creates an unreasonable burden of proof for victims of police misconduct. Courts no longer have to determine if a government official acted unconstitutionally when ruling on qualified immunity, but victims somehow still need to point to cases where an official acted unconstitutionally in order to overcome a qualified immunity defense.
DANGER #3
Qualified immunity discourages police accountability.
Under the qualified immunity doctrine, whether an officer violates the law or how egregiously they violated the law does not matter. Qualified immunity protects officers either way, and, in turn, signals to officers that they can break the law without repercussion, absent the arbitrary standard of “clearly established law” being met.
Overall, qualified immunity is only defended by mere myths — not based in reality. And these myths do not account for the substantial dangers that the doctrine poses for accountability, the ways in which it undermines the rule of law, and the peril it poses to all Americans, particularly Black communities most at risk of facing police violence. Defending qualified immunity promotes lawlessness and violence and ultimately shields officers, and other government officials, who violate the law. If qualified immunity is not abolished, these officials will continue to be protected — and marginalized communities will continue to endure dire, long-lasting consequences as a result.
catch later.
Back the blue until they do it to you.
It’s the two percent who are good cops, that ruin the reputation of the other 98%.
“If officers aren’t breaking the law, there is no reason to expect that they will be penalized for their conduct.“
Baloney. Officers face constant litigation even if they do everything perfectly. Right now, their employer stands responsible for their act, and provides their legal defense. If it gets to the point the qualified immunity is gone, every police officer will need to self fund an attorney numerous times in their career. This does indeed make it untenable. And it has no relation as to whether or not they meticulously follow the law or not.
And then everyone of those cases, the city who employed that officer is indeed on the hook for the litigation. All this does is make it to where they can go after the officer personally rather than his department.
Amazing to see how many conservatives have picked up this BLM talking point
Straight from the NAACP legal defense fund.
Do you know what Qualified Immunity is?
Ask any retired police officer how many times they were sued during their career. And the irony is, the higher quality officers faced the most litigation. They are out there making arrests, going into dangerous situations, arresting the most dangerous people, or the most combative. The lazy officer who you cannot pry out of the seat at the donut shop doesn’t get sued very much. If this NAACP, BLM policy becomes widespread, it would be impossible to be a police officer without malpractice insurance like a doctor has. That would be cost prohibitive for what they are paid.
👍👍👍👍👍
Yes. And it’s not the fantasy version that BLM is selling. When officers break the law, when they make mistakes, intentional or not, the city is fully legally liable for the tort.
Good article...
And “qualified immunity…” that’s where BLM does 2 billion plus in damage, murders around 30 people including scores of cops and avoids prosecution…
Mandatory dash and body cameras go a long, long, long way to remove that issue.
If that’s not enough, lets just have a jury decide on QI on a case by case basis. QI should *not* be automatic.
In case you missed it, increasing numbers of conservatives have been publicly abused by officers (and not even getting into J6 here) *on video* and the officers were *not* held responsible due to QI.
as things stand now, there are almost no restraints at all on the enforcers of the police state. They can break down your door at 3 AM, kill you with impunity, steal your property. A free nation would allow none of this.
Indeed. make the standard a "reasonable man test".
You are confusing two things.
Most LEOs I know have personal professional liability insurance because they do not trust their departments to back them up. Its not super expensive but the coverage is minimal, general pegged at 100K.
Take the current gov protection away you will loose 50% of LEOs within 6 months. That is what this is really about.
QI was removed in Colorado and the mass exodus you predict did not happen there.
Yup. Let the people (in the form of a jury) decide if they want to extend QI in a specific incident - not some unelected bureaucrat looking to cover their or their departments’ arses. It is then the people’s fault if something goes awry with that.
“We have investigated ourselves and found no wrongdoing” isn’t becoming a popular ironic joke withouth a reason.
Is it BLM or trial lawyers? Or both?
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