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KEY THEMES

Politics
Law Enforcement
Police Reform

location

United States

KEY SOURCES

Congressional Research Service
National Conference of State Legislatures
Cornell Law
Foundation for Economic Education
Federal Law Enforcement Training Center
Pew Research Center
United States Court of Appeals

WHY THIS QUESTION MATTERS: 

Last week we discussed the use of body cameras for police officers in light of the continued protests were sparked by the murder of George Floyd. Many questions on law enforcement reforms remain but one sticks out, how do we hold officers accountable for their actions? 

One of the more technical concepts that has come up is “qualified immunity.” Some leaders in the House and Senate are recommending that this long standing doctrine either be abolished or reformed; while others want it to remain. 

So, let’s talk about it. Qualified immunity protects certain government officials, including police officers, from being held personally liable for violating other people’s constitutional rights in the course of their duties, and makes them immune from civil suits unless they violate “clearly established law.” The goal is to protect public officials from the expense and distraction of litigation, and from the danger that they will not be able to appropriately perform their duties out of fear of being sued.

A QUICK NOTE: Qualified immunity is a legal concept that is highly technical in its application. This newsletter is meant to give a brief overview of the topic and controversy, and therefore purposely avoids many of the legal intricacies of qualified immunity. To better understand qualified immunity, we recommend leveraging the source links for more detailed legal explanations. 

What is Qualified Immunity?

• Qualified immunity is a type of legal immunity that shields government officials from lawsuits that state that the defendant violated the plaintiffs rights. It does not apply in cases where a defendant's “clearly established” rights are violated. The law is in place to protect officials from “harassment, destraction, and liability when they perform their duties reasonably.” The defendant is judged on whether an action was reasonable given the specific situation and whether the defendant could have reasonably known that they were violating a “clearly established” constitutional right. (Cornell Law School Legal Information Institute )

A Bit of Historical Context:

• 42 U.S.C. Section 1983 was enacted in 1871 to combat civil rights violations occurring in the South. It subjects state and local government officials to lawsuits for money damages for violating federal constitutional and statutory rights. But the Supreme Court has held qualified immunity applies if the law violated isn’t “clearly established.” The qualified immunity doctrine is very favorable to state and local government officials. The law is rarely clear because most cases involve different facts. The Supreme Court has gone so far as to say that qualified immunity protects all but the “plainly incompetent.”  NCSL

• The Ku Klux act of 1871, the Third Enforcement Act, or the Second Ku Klux Klan act was intended “to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States,” (Federal Judicial Center)

• “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”(USLegal)

Recent Developments:

Police actions and decisions in the field have been the focus of substantial research. Yet, recent high‐profile incidents of police use of excessive force have generated greater political and social salience to this matter. Flowing from this have been greater calls for oversight and review of police decisions. Body‐worn cameras (BWCs) are one organizationally based measure that has been strongly advocated to address these concerns.

Billions of dollars are being spent worldwide on the roll-out of body-worn cameras for police officers. With so much at stake, there is an urgent need to understand whether body-cameras are helping police officers and members of the public, and under what conditions they work best. 

Today we’ll walk you through some of the research to date.

THE COMMON THREAD:

Police officers should feel able to do their jobs to protect communities and communities should be kept safe.

FIND YOUR THREAD:

Supporters of reform argue that qualified immunity is an outdated and ineffective mechanism that gives blanket immunity to officers. Opponents of reform argue that, without protection for officers, they would be unable to do their job effectively.

What do you think?

​Yes, qualified immunity should be reformed or abolished.

Reason 01

Qualified immunity is not legal and provides a ‘shield’ for officers to be above the law.

• When liberally applied, qualified immunity provides an absolute shield for law enforcement officers. According to one recent study, appellate courts have shown an increasing tendency to grant qualified immunity, particularly in excessive force cases. From 2005 to 2007, for example, 44 percent of courts favored police in excessive force cases. That number jumped to 57 percent in excessive force cases decided from 2017 to 2019, meaning officers are not held accountable for their actions. Congressional Research Service

   

• Some scholars have argued that qualified immunity has no basis in the common law. Justice Thomas argued that the modern doctrine of qualified immunity bears little resemblance to the common law immunity and instead represents a “freewheeling policy choice.” Congressional Research Service

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Reason 02

Qualified immunity is ineffective at its primary intention of reducing costs of expensive and time-consuming trials.

• In "How Qualified Immunity Fails," Joanna Schwartz notes that one of the reasons the Supreme Court grants government officials qualified immunity is to save them from the hassle and expense of going through discovery and a trial. But her research reveals that qualified immunity rarely accomplishes this goal because it is more often raised and granted after discovery has begun. National Conference of State Legislatures

• According to some studies, police officers are “virtually always indemnified." This means even if they are found liable for their own individual conduct, the city or county covers any monetary damages. This may alleviate officers' concerns about the cost of litigation and render qualified immunity useless. Congressional Research Service

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Reason 03

Police officers should be held accountable for their actions just like other professionals. 

• Rather than qualified immunity, police officers could be “held personally liable for any rights violations. They’d need to carry personal malpractice insurance, just like lawyers, doctors, and other professionals. Insurance companies are qualified and motivated judges of risk, and they would provide another reasonable level of scrutiny on police conduct, policies, and training." Cornell Law

• Qualified immunity contradicts federal law. Section 1983, the federal law that allows citizens to sue for constitutional violations, is broad, unequivocal, and unambiguous. Allowing public officials to be exempt from these lawsuits is unfair and counterproductive. Foundation for Economic Education

No, qualified immunity should not be reformed or abolished.

Reason 01

Qualified immunity protects communities just as much as it protects officers.

• The rationale behind qualified immunity for police officers is two-fold. First, it permits officers to perform their duties without fear of constantly defending themselves against insubstantial claims for damages. Second, it allows the public to recover damages when a reasonable officer would know that the officer unreasonably violated a plaintiff’s constitutional or federal legal rights. Qualified immunity is designed to protect all but the plainly incompetent or those who knowingly violate the law. Federal Law Enforcement Training Center

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Reason 02

Policing cities is a dangerous job and officers need protection.

• “Average police officers are three times as likely as workers overall to say they nearly always or often have serious concerns about their physical safety while on the job (42% vs. 14%). Employed Americans, meanwhile, are about four times as likely as officers on average to say they hardly ever or never seriously worry about their physical well-being at work (67% vs. 16%).” Officers may need protections in high stress situations where they have to make decisions that may seem unreasonable from an outside perspective. Pew Research Center
  

• A majority of the Supreme Court has emphasized the important role qualified immunity plays in allowing law enforcement the flexibility to make judgment calls in rapidly evolving situations. And although a majority of jurisdictions may indemnify police officers, some do not— leaving officers at risk of personal financial liability. Congressional Research Service

• In those crucial seconds, officers don’t have the time to pull out law books and analyze the fine points of judicial precedent. To avoid “paralysis by analysis,” qualified immunity is necessary to protect all but plainly incompetent officers or those who knowingly violate the law. United States Court of Appeals

Reason 03

Qualified immunity is decided based on the best interest of the accuser.

• The judge must consider the facts in a light most favorable to the plaintiff. In granting qualified immunity the judge says, in effect, “Mr. Plaintiff, even considering the facts in your favor, no reasonable jury could find for you.” Because of this high bar, it is not unusual for a court to deny an officer qualified immunity, even if the officer did - in fact - act reasonably. Federal Law Enforcement Training Center

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