If want to remove unjust policing, we must end qualified immunity

Following the death of George Floyd, peaceful—and less than peaceful—protests have broken out across the country against what is perceived as an abusive police system that often absolves officers of wrongdoing, sometimes in the most egregious cases. To address unjust policing and restore public trust will require big changes in state and federal policy, as well as in police practice.

Unfortunately, the Supreme Court has just passed on an opportunity to effect such change. Several petitions requesting the Court to re-examine a legal doctrine known as qualified immunity were recently denied, leaving little hope that the Court will take the lead on needed reform. Only Justice Clarence Thomas voiced dissent.

Qualified immunity grants police officers and other government officials immunity against civil lawsuits in the exercise of their responsibilities, subject to key limitations. Among the limitations outlined originally by Congress, a police officer loses immunity when he or she, “subjects… any citizen of the United States or other person within… to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”

Over the years, the Court has functionally neutered Congress’s original objective of holding public officials accountable for the violation of civil rights. As the case law has developed, the police and other officials receive immunity unless the facts indicate a constitutional right has been violated and the right was “clearly established” at the time of the misconduct. 

The term “clearly established” is the minnow that has swallowed the whale.

To determine whether the right was clearly established, it must either be established by statute or case law. But which case law? The Supreme Court can “clearly establish” something as a right, but it rarely does so. Appeals courts have held they can clearly establish a right, but the Supreme Court has cast this assertion into doubt. So the lower courts are left with a Catch-22. They cannot enforce a right without it being established, but the only way to establish the right is to enforce it. 

This has led to some of the most egregious case law in recent history. For example, the Cato Institute cites a Ninth Circuit case that alleged the police stole $250,000 in cash from homeowners. “The three‐​judge panel held that while theft may be “morally wrong,” the officers could not be sued because the Ninth Circuit had never specifically considered the issue, and therefore the right not to have police steal your property while executing a search warrant was not “‘clearly established’ in that jurisdiction.” Additionally, the Supreme Court has aggressively policed qualified immunity, supporting officers and dismissing petitions of citizens that would establish those rights.

We do not tolerate such behavior among private citizens; even less should we tolerate it among public servants, who, if anything, should be held to higher standards, not lower. Yet, the current state of the law holds officers to standards lower than is reasonable even for basic citizenship, let alone for their profession, and to avoid facing personal liability for their actions. While doctors and other health care professionals, lawyers, and even general laborers are held to standards of reasonableness appropriate to their work environment, often a more exacting standard, law enforcement is given a bar so low that nearly all conduct clears it.

When the Court created qualified immunity, its concern was that public officials would be deterred from executing their important responsibilities if mired in lawsuits. The Court’s concern is not completely unfounded. Law enforcement is a dangerous job and imposing the cost of a potential civil suit could discourage people from becoming police. However, these concerns are mitigated when provided additional context.

First, policing is not as relatively dangerous among professions as is commonly held. Bureau of Labor Statistics data indicate that log workers, fishery workers, aircraft engineers, roofers, garbage collectors, and many others all have more dangerous jobs than the police.

Second, the risks and costs of civil lawsuits can be managed through insurance markets, just as it is for other professions. Such insurance markets could also be a further check on police abuse. As Clark Neily of the Cato Institute has written:

Like police, doctors have a difficult and stressful job that sometimes involves making life‐​or‐​death decisions under conditions of uncertainty. But unlike police, doctors don’t expect the rest of us to pay for their mistakes. Instead, doctors carry professional liability insurance, which pays to defend them against malpractice claims and protects them from financial ruin by paying out damage awards to successful plaintiffs.

Insurance companies are exceptionally good at identifying risk. Think about car insurance. The more accidents or speeding tickets a driver has had, the higher their premiums will be. The same is true for teenagers, who tend to get in more wrecks than adults and therefore represent a greater risk to the insurance company.

Instead of spreading those risks among all of their policyholders, insurance companies charge risky drivers more while giving a break to their safest drivers, who pay less.

…insurance companies have powerful incentives to identify the greatest risks — whether drivers, doctors or cops — and charge them accordingly. If cops had to carry insurance, the worst offenders would quickly be identified and charged higher rates. If they failed to clean up their act, they would eventually become uninsurable and thus unemployable.

Currently, qualified immunity pushes the cost of police misbehavior onto victims and the public, but because those costs are diffused among many and the benefits concentrated among a few, it is difficult to muster the political momentum necessary to turn it around. Politics remains a barrier to reform.

Additionally, reducing police accountability in the short term is not only unjust, it also undermines the objectives of those who tolerate high leeway for the police. When members of society do not trust that law enforcement will be held accountable for its failings, mostly at the expense of a few, then it impacts the ability of law enforcement to protect people. When law enforcement is truly needed, such as to control rioting and violence, trust that any aggressive interventions are fair and reasonable will have already been compromised, which in turn leads to less trust and more potential rioting, which leads to more heavy-handed police interventions and so forth. 

Abolishing qualified immunity raises the costs of misbehavior. And as the cost of abuse increases so will the reputation of law enforcement as an institution that serves all, as bad actors are priced out of the occupation.

But now the cycle is spinning in the opposite direction, largely due to qualified immunity. And it will continue to spin out of control until steps are taken to restore accountability for, and thus trust in, law enforcement.

Access to justice is a sign of an inclusive civilized society, and righting harms through civil law plays an important part in curbing injustice and providing redress to the injured. The Supreme Court has created a system that undermines Congress’s original intent to hold law enforcement accountable and denies civil law remedies to those who have been wronged.

Fortunately, Rep. Justin Amash has introduced a bill to end qualified immunity. Since the Court has proven derelict in its responsibility to defend the constitutional rights of Americans, it is now up to Congress to decide whether they will fulfill that duty.

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