A government by the people, for the people, should be accountable to the people. But, in our system of government, police are rarely held accountable for violations of the people’s rights. When victims of police misconduct go to court, they rarely see any form of compensation. This is the case even when they have evidence of the misconduct. This practice must end. The future of policing should focus on police accountability and victim compensation. To do this, Congress must abolish the doctrine of qualified immunity.
Congress passed the Civil Rights Act of 1871 so that citizens can sue the government when their civil rights are violated. Judges, fearing that officials will be harassed by these lawsuits, created the doctrine of qualified immunity.
Under this doctrine, public officials, usually police officers, are protected from lawsuits. When police are sued, courts will typically dismiss the lawsuit unless the victim can show that the police violated a “clearly established” right under the law. For the victims, this means that they have to find a previous case that is nearly identical to their own where the court held that the police conduct violated the law.
This standard is nearly impossible to meet. Consider a case where the court granted qualified immunity to an officer who grabbed a woman in a bear hug, slammed her to the ground and handcuffed her, breaking her collarbone and knocking her unconscious. He did this because she walked away from him after he told her to “get back here.”
In court, the woman lost. Even though she was able to point to cases where the court held it was illegal for police to take down nonviolent victims, that was not enough. The court explained that this case was different from the other ones because the woman did not comply with the police when he told her to “get back here.” And thus, she failed to meet the standard of showing that the takedown was a “clearly established” violation under the law. But no two cases are ever identical. And a good defense lawyer will almost always find a fact that makes the cases different enough so that the law seems to be not clearly established.
Not only is the standard nearly impossible to meet, it also leads to unjust results. In one case, officers stole $225,000 while executing a warrant and were still protected by qualified immunity. Even the court acknowledged the absurdity of the case. They called what the officers did “deeply disturbing” and “morally reprehensible.” So why did they apply qualified immunity? They explained that there was no case that made stealing money while executing a warrant a “clearly established” violation of the law. The court seemed to ignore the Fourth Amendment, which requires that searches and seizures must be “reasonable.” And it did not matter to them that the victims were able to point to a very similar case, where the same court held that it violates the Constitution for police to not return a car. For the court, that latter case is different because the car was taken without a warrant. But a warrant is not a license to steal. The Fourth Amendment was meant to protect against such government abuse, but the doctrine of qualified immunity undermines these protections.
Defenders of qualified immunity usually argue that it promotes good policing. It protects against lawsuits that are meant to harass the police, and allows police to make necessary split-second decisions.
But these reasons are not convincing. First, the risk of harassment is present in all lawsuits but there are procedures to protect against harassment, such as dismissing a case with no merit. Second, the risk of lawsuits is likely to have a positive impact on a police officer’s behavior by deterring misconduct. If the split-second decision is lawful, then the officer will not be liable. If unlawful, then we should want the officer to second guess that decision. Before drawing a firearm and shooting, an officer must be sure that this is the right decision. As Supreme Court Justice Sonya Sotomayor explained, qualified immunity tells officers to “shoot first and think later.”
Abolishing qualified immunity does not mean that the police will be found liable for every decision gone wrong. Rather, it simply means that the case will go to a jury and the jury will decide whether the officer should be liable. We already do this for lawsuits involving doctors, who at times also have to make split-second decisions that involve life or death.
The cost of these lawsuits will also incentivize local governments to reform policing from within. UCLA law professor Joanna Schwartz, a leading expert on police misconduct, found that when officers lose lawsuits, the local government pays. To avoid paying these damages, police departments will likely provide better training and change policing practices. And, officers who engage in patterns of misconduct will not be backed by the departments, since now the misconduct is costly.
The recent protests have shined a spotlight on the disproportionate burden that the Black community bears as a result of police brutality. If qualified immunity continues to protect police officers, not only will victims not be compensated, but the violations will continue to occur.
This framework contradicts the text of the Civil Rights Act of 1871. Supreme Court Justice Clarence Thomas has argued that the doctrine of qualified immunity has “diverged from the historical inquiry mandated” by the Civil Rights Act of 1871, which was established so victims can seek money damages for violations of their civil rights.
Although the Supreme Court denied a reevaluation of the policy, change might come another way. In Congress, two Representatives have introduced a bill — the Ending Qualified Immunity Act — to reform this judicially-created doctrine. As citizens, we have an obligation to participate in our democracy. Call or write to your representatives and ask them to support this bill in order to respect our constitutional design and provide protection against government violations of the people’s rights.
Andrew Ebrahem is a rising 3L at the University of Virginia School of Law.
The opinions expressed in this column are not necessarily those of The Cavalier Daily. Columns represent the views of the authors alone.