Justice in Policing Means Ending Qualified Immunity

After the brutal murder of Tyre Nichols this year, we took some solace in the quick response of the Memphis police chief and DA in indicting the officers for their inhumane criminal conduct. That’s in no small part because this sort of response is an outlier. Law enforcement officers kill about 1,000 people across the United States every year. From January 2005–September 2020, only 120 officers were arrested for manslaughter in on-duty killings, and of those, only 44 were convicted, often of a lesser charge, according to Criminal Justice Professor Philip Stinson.

Those rogue law enforcement officers cannot be sued in civil court to hold them personally accountable either—even in cases where offending officers have committed multiple similar offenses and the government agencies who employ them paid out millions in damages. What protects these rogue officers from accountability is a legal doctrine called qualified immunity, which shields government officials from lawsuits that allege the individual violated a plaintiff’s rights. As it relates to police, it protects officers’ personal assets — including their pensions — from being awarded in lawsuits. Instead, lawsuits related to the violation of rights by police officers usually name their municipalities as defendants, so it's taxpayers who bear the cost of civil rights and wrongful death judgements.

The George Floyd Justice in Policing Act (GFJPA) was an important step toward meaningful police accountability, although advocates like the NAACP Legal Defense Fund and the ACLU wanted it to be even stronger. It passed the House on March 3, 2021, with no Republican votes, even though it was supported by the International Association of Chiefs of Police and the Fraternal Order of Police. But it was stalled from being brought up for a vote in the Senate, due to a stalemate over its provisions, including ending qualified immunity..

Millions of us have protested over and over to assert that Black Lives Matter, and states and cities nationwide have instituted various kinds of police reform to protect citizens from police brutality. But even after police departments have held thousands of hours of sensitivity-training on racial bias and de-escalation techniques, and cities have spent more than $3 billion over the past ten years on police misconduct settlements, police continue to murder unarmed Black people with impunity.

The qualified immunity doctrine leaves it up to the police departments themselves, and the district attorneys who work with them on a daily basis, to hold officers accountable for their actions. Except for a small handful of DAs like our own former DA Chesa Boudin, few DAs have shown any interest in holding police responsible for racially motivated violence. Ending qualified immunity so that police officers can be personally sued for their brutality would make a good start on discouraging their impulsive use of lethal force.

The case that defined the modern formulation of qualified immunity in practice today is Harlow v Fitzgerald of 1982. While the Court said it was designed to protect public officials more than the previous standards had, it was not supposed to “provide a license for lawless conduct.” Unfortunately, since Harlow, federal courts have applied qualified immunity in ways that make it tilt significantly in favor of government defendants, so we are unlikely to get a remedy from Chief Justice Roberts’ Supreme Court.

Stymied by roadblocks to ending qualified immunity at the federal level, states and municipalities have begun asserting their authority to hold government officials accountable, mostly by establishing new paths for civil lawsuits when officials violate civil rights enshrined in either the federal or state constitution. One example is Colorado’s SB 217 (2020), which specifically states that qualified immunity is not a defense.

What can we do? In the absence of federal-level reform or elimination of the qualified immunity doctrine, some state legislators are trying to address the issue. The Institute for Justice, a public-interest law firm and advocacy organization, has launched Americans Against Qualified Immunity (AAQI). They hope those of us interested in ending qualified immunity will join together in building grass-roots support to encourage state and local officials to end qualified immunity.