Qualified Immunity: A Legal Error
The political gridlock in Washington has claimed another victim. Meaningful police reform legislation at the national level will not happen in 2021. A major stumbling block is a dodgy legal concept called “qualified immunity.”
Essentially, qualified immunity as a doctrine is supposed to balance two important interests in a democratic society: “1) the need to hold public official accountable when they exercise power irresponsibly and 2) the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” (Pearson v. Callahan, 2009)
Nothing in the US Constitution addresses the concept directly, but supporters have used as a basic rationale the Civil Rights Act of 1871. That was a federal statute passed to assist the national government in combatting Ku Klux Klan violence in the South. Under the act individuals could sue government officials for damages when those officials violated their constitutional rights.
The act was not very successful in countering the impact of the KKK, and the concept itself received little attention for nearly a century. In the last four decades, however, primarily through court decisions qualified immunity has become a serious threat to public confidence in the fairness and equity of our justice system.
It is with regards to law enforcement officers that use of qualified immunity has been most noticeable and challenged by community activist and legal scholars. For several years now available data has indicated that more than 1,000 people have been killed annually in the United States by police. Awareness has been heightened by several well-publicized incidents in which individuals have been slain or seriously injured as result of illegal or inappropriate actions of police officers.
There is also evidence of significant bias against African Americans in these incidents. At least a quarter of victims are African Americans although they represent only 13 percent of the nation’s population.
According to recent data, US police use deadly force extraordinarily more often than do law enforcement agents in other developed countries. The rate of civilians killed by police in the US is 33.5 per 10 million population. Canada with a kill rate of 9.8 is the nearest to the US, followed by Australia with a kill rate of 8.5. Trailing far behind are Germany with 1.3, England, 0.5 and Japan, 0.2.
An article published earlier this month in The Lancet, has exacerbated the issue. A study referenced in the British medical journal reveals that records for the period between 1980 and 2019 have underestimated police-related deaths in the US by 100 percent. The data also raises questions about the racial bias of medical examiners, who work closely with police and prosecutors, as well as the lack of reliable national record keeping on a major public health and civil rights issue.
In the face of serious questions about police bias in the US, some minority groups have issued calls for “defunding” the police. Voiced in response to highly emotional incidents, this demand never achieved wide acceptance among the voting public.
On the other hand, there have been legitimate questions about whether or not some functions assigned to the police are appropriate. For example, should law enforcement officers be the first responders in situations involving mental health issues, domestic disputes or school discipline?
Also, concerns have been raised about the training and guidance provided police for dealing with situations that should not require the use of force. The case of Malaika Brooks is instructive.
Brooks was dropping her 11-year old son off at school in Seattle when she was pulled over for speeding. She was traveling 32 miles an hour in a 20 miles an hour zone. She cooperated with the three officers, but she refused to sign the speeding ticket thinking it would be an admission of guilt.
Given the fact that Brooks had provided her driver’s license, the officers knew where to find her if she failed to show for court. Still, they insisted she sign. When she would not, they pulled her from her car, tased her three times, threw her face down on the ground and handcuffed her. Any constitutional questions aside, human decency and common sense called for a different reaction.
Naturally, she sued, but the federal courts offered her no relief, justified by the qualified immunity enjoyed by the police officers. In 2014, the city of Seattle did provide her with a $45,000 settlement after ten years of fruitless litigation.
America is a highly litigious country. We spend more time in legal disputes than any other nation. Better to resolve disputes in court than in the streets with lethal weapons. But the concept of qualified immunity as implemented today makes our reliance upon the justice system problematic.
The US House of Representative passed the George Floyd Justice in Policing bill in March 2021. It addresses a wide range of policies and issues regarding policing practices. It would increase accountability for law enforcement misconduct, enhance data collection and establish best practices and training requirements.
When the legislation moved to the US Senate, Senators Corey Booker (NJ-D) and Tim Scott (SC-R) assumed leadership roles in negotiating any differences with the house bill for their respective parties. Their mission failed.
Scott claimed the Democrat call “to defund the police” was the problem, but surveys of police spending nationwide do not indicate any significant change in law enforcement spending. Booker blamed the refusal of Republicans to accept any restriction on qualified immunity, which Scott continues to defend.
Respect for rules and regulations is essential to a free, safe and prosperous society. Even in an homogeneous country legal and customary guardrails are necessary for harmonious coexistence. In a nation as diverse as the US fair and equitable implementation of the rule of law must be a priority. The insistence that police officers be allowed to act unimpeded by either the Constitution or simple common sense undermines that priority and in fact, often enables the obstruction of justice.