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Law that shields bad cops from liability needs to be changed | COMMENTARY

Police body camera footage of the arrest and killing of George Floyd at the hands of Minneapolis police. His killing has sparked renewed interest in eliminating the "qualified immunity" law that makes it hard to hold police officers accountable for misconduct.
Police body camera footage of the arrest and killing of George Floyd at the hands of Minneapolis police. His killing has sparked renewed interest in eliminating the "qualified immunity" law that makes it hard to hold police officers accountable for misconduct. (Hennepin County via The New York Times)

Amid anti-racism protests nationwide and police-reform efforts, there is no time like the present to take a close look at “qualified immunity” — a legal doctrine that can restrict citizens’ ability to recover damages for civil rights violations by shielding government officials from lawsuits and civil liability.

In light of current high profile police brutality incidents around the country, the term is far from esoteric legalese and the idea of whether the country should stop protecting officials who break the law is highly debated. While the U.S. Supreme Court in June rejected seven opportunities to rule on qualified immunity’s continued vitality, the U.S. House of Representatives passed the George Floyd Justice in Policing Act (H.R. 7120) in June. The bill would end qualified immunity for law enforcement officers. In the Senate, a bill has been introduced that would eliminate qualified immunity and separate legislation would significantly reform the doctrine.

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Understanding current standards on qualified immunity is a key part in ensuring that police officers who abuse their office can be brought to justice and how we as a society should rethink this doctrine going forward.

Federal law allows civil suits for violations of an individual’s constitutional rights. These cases are often referred to as “Section 1983” claims, named for the statutory section where the law is codified. That section allows people to sue officials acting “under color of” state law for violations of federal rights.

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But qualified immunity is a judge-made doctrine that substantially limits the ability of citizens to recover damages under Section 1983 for constitutional violations committed by law enforcement. Its scope is significant. The Supreme Court has held that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

The Supreme Court stressed that judges must determine “immunity questions at the earliest possible stage in litigation,” meaning that litigants must confront qualified immunity issues long before a court can reach the merits of a claim. A study of cases since 2005 found that the law isn’t working in favor of aggrieved individuals and that appellate courts have increasingly granted qualified immunity in excessive force cases. In a leading paper, University of Chicago Law School Professor William Baude found that “nearly all of the Supreme Court’s qualified immunity cases come out the same way — by finding immunity for the officials.”

The doctrine of qualified immunity all too often prevents citizens from recovering damages for violations of basic human rights as enshrined in the Fourth Amendment and Section 1983. Many lawsuits for such violations are never filed because it is so difficult to overcome this legal hurdle and get justice.

To overcome qualified immunity, an individual must show that a federal right was violated, such as when excessive force was used in violation of the Fourth Amendment. Plaintiffs must also establish an officer knew or should have known that the actions broke “clearly established law.” Since the Supreme Court’s 2009 decision in Pearson v. Callahan, the high court has allowed lower courts to grant qualified immunity without ruling whether excessive force was actually used.

What is “clearly established law” remains a matter of significant debate and to show a violation of it, a citizen must typically be able to show that in an earlier case with a comparable fact pattern the court found a similar violation. As one federal judge recently noted, the situation can result in a “Catch-22” for individuals, meaning that “no precedent = no clearly established law = no liability,” or practically speaking, “heads defendants win, tails plaintiffs lose.” Another federal judge recently wrote that qualified immunity “operates like absolute immunity” and this “manufactured doctrine” has done real harm to countless individuals and our nation as a whole.

Qualified immunity has been criticized by liberal and conservative justices of the Supreme Court including Sonia Sotomayor and Clarence Thomas, albeit for different reasons.

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In a 2015 case, Justice Sotomayor wrote that the application of qualified immunity sanctioned a “shoot first, think later” approach to policing. The high court was ruling about an officer who shot at a moving car despite his superior’s direction to “stand by” and stated that even in those circumstances, qualified immunity prevented a citizen from suing. Justice Sotomayor repeated her call to action in a 2018 case, writing that the high court’s jurisprudence represented “a one-sided approach to qualified immunity” that transformed “the doctrine into an absolute shield for law enforcement officers” and informed “the public that palpably unreasonable conduct will go unpunished.”

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Justice Thomas has stated that the high court should “reconsider [its] qualified immunity jurisprudence” because it was growing unmoored from its historical, common law foundations. In a 2017 dissent, Justice Thomas wrote that the Supreme Court’s qualified immunity precedents represented “precisely the sort of freewheeling policy choices that [it had] previously disclaimed the power to make,” and that it had “diverged from the historical inquiry mandated by the statute.”

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Now would seem like the right time to reexamine qualified immunity. As lawmakers weigh options — and if the Supreme Court has another chance to weigh in on the subject — they should remember the following: Law enforcement serves an important function in modern society, but qualified immunity should not amount to unqualified immunity when excessive force is used or other rights under the Fourth Amendment are violated.

It should be uncontroversial that police officers who protect and serve the public must be accountable for actions that fall well outside the bounds of reasonable policing. Until broad change emerges from Washington, it falls to communities, police departments, prosecutors, and judges to determine what actions fall within and outside the reasonable standards of police conduct.

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David Biderman (DBiderman@perkinscoie.com) and Tommy Tobin (TTobin@perkinscoie.com) are attorneys at Perkins Coie LLP’s Los Angeles and Seattle offices, respectively. Mr. Tobin is admitted to practice law in Maryland.

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