Qualified Immunity Is “A Problem” But Not “The Problem”

Having spent years arguing about the wrongfulness of the judicially-invented activist defense to § 1983 and Bivens actions, the dreaded Qualified Immunity, it’s hard, awkward and, frankly, distasteful to write what I’m about to write: Eliminating Qualified Immunity is not the solution to police wrongfully, needlessly, killing people.

Qualified immunity precludes recovery in a civil action for damages against the police for the violation of someone’s civil rights. It has nothing to do, per se, with whether they will be fired from the job (and subsequently reinstated with back pay after union arbitration) for their conduct or criminal prosecution for the commission of a crime.

But, but, but the New York Times says so?

Police officers don’t face justice more often for a variety of reasons — from powerful police unions to the blue wall of silence to cowardly prosecutors to reluctant juries. But it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity from prosecution for actions taken while on the job. The badge has become a get-out-of-jail-free card in far too many instances.

And the Supreme Court has most assuredly failed miserably to help eradicate the problem by its creation of Qualified Immunity, its elimination of the sequence of ruling on whether conduct violates the Constitution, thereby making it “clearly established” before tossing the case so that the next time it happens, the case won’t be tossed, and generally approving of any distinction, no matter how tangential or irrelevant, to distinguish clearly established violations from the case at hand.

But all this relates not to punishing the cop who did the crime, but denying compensation to the victim of a crime. In other words, this comes well after the fact. It doesn’t prevent the commission of the unlawful conduct, but compensation for it.

But doesn’t that provide an incentive to the cop not to engage in unlawful conduct?

To some extent, sure, but the cop doesn’t usually pay for his own defense, as it’s covered by the municipality that employs him. The cop doesn’t pay the judgment either, as the municipality indemnifies him. There are a list of reason why this can’t, won’t, shouldn’t be changed to make the cop personally liable for his unlawful conduct, even though there is a similar list of reasons why he should, but this is all unicorn wishfulness and unworthy of serious discussions. Academics can be so self-indulgent, but it’s unserious.

The more serious approach is to contend that if a cop costs the municipality serious money, then it behooves the municipality to either oversee its cops better and/or rid itself of bad cops who engage in unlawful conduct and cost more than their worth. And this should, in a better world, incentivize municipalities to do a better job of eliminating bad cops from their police departments and making sure, whether by training or otherwise, that cops don’t violate the constitutional rights of its citizens. Of course, one might hope that municipalities didn’t need special incentives to do this, but reality bites.

The disconnect here is the perspectives of cops and cop unions, which are forcefully directed toward protecting jobs and pensions. As much as many cops take issue with the bad ones, and the bad ones are always some other cop but not them, every cop fears that he will make a life-altering mistake in the heat of the moment. If the municipality doesn’t protect them, cover them, they will use one of the many tools at hand to make everyone miserable. Cops, and particularly cop unions, can be very persuasive.

Plus, it bears noting that the cost of these suits, both legal and damages, doesn’t come out of the pockets of the municipalities officials any more than it comes from the cops. The cost is paid by the taxpayers, and for reasons that have always eluded me, they may not be thrilled at the wasted expense, but they rarely seem to be angry enough to do anything about it.

So what else might be done to compel police not to kill?

Direct consequences, whether firing and/or prosecution, which directly impacted the cop who committed the unlawful or illegal conduct. There are mechanisms that can be employed swiftly to a cop who does wrong, as opposed to a civil action years later that will only hurt to the extent the cop’s name is in the caption.

But then, termination is subject to the union contract, the statutory Law Enforcement Officers Bill of Rights in those states that have enacted LEOBR and general union, and hence rank and file, condemnation. And even in the worst case scenario, it’s hardly unusual for a cop to find employment in another department not too far from home.

As for criminal prosecution, not to mention obtaining a conviction, the results can be seen in the many high-profile cases where it failed to happen, each casing being parsed within an inch of its life and yet, as seen in the failed Eric Garner indictment or Tamir Rice, Philandro Castillo, Walter Scott and, well, it’s a long list, neither prosecutors nor jurors have demonstrated much will to convict a cop.

Does that mean Qualified Immunity isn’t as bad as they say?

Hardly. It’s terrible law, even though there are some meritorious arguments in favor of it. But too many people confuse the relationship between Qualified Immunity and other means of addressing police misconduct, blending them all together as if QI precludes prosecution or discharge, and failing to appreciate the limitations that the elimination of QI would have on any individual cop’s “split second” decision to kill.

With or without Qualified Immunity, the First Rule of Policing would remain intact. With Qualified Immunity, the Reasonably Scared Cop Rule protects them from the consequences of their decision. There is no question that QI should be eliminated, but that doesn’t mean cops won’t kill any more than they do now.

8 thoughts on “Qualified Immunity Is “A Problem” But Not “The Problem”

  1. John Barleycorn

    That wasn’t so hard now was it…

    Maple bacon donut for you Mr. Greenfield!

      1. LookieLouE1707

        If you’re not strong enough to impose the removal of qualified immunity on hostile police forces, what makes you think you have the juice to credibly threaten them with any other meaningful behavior deterrent? That kind of argument, as an argument against any specific remedy, is a nonstarter.

        1. SHG Post author

          Well, I bet I’m “strong enough” to beat up one of the older Supreme Court justices, but I don’t think that’s how one “imposes the removal of qualified immunity,” you dolt.

  2. Sam

    I’m continually surprised by people above a certain age continuing to believe in silver bullet solutions. It’s not as if many of the problem with policing we discuss today don’t predate qualified immunity and youtube. Prosecutors have “absolute immunity” and hardly hear talk of that in the media at all.

    Behavioral modification typically involve skin in the game and there’s nothing original or mysterious about people in authority creating special rules to shield them from said skin. When I hear a proposal for criminal reform I start there. Qualified immunity, as terrible as it is, simply transfers police liability to the public. I fail to see how that, as opposed to a credible threat to reduce manpower and/or funding would get their attention.

  3. Bryan Burroughs

    Instead of civil judgements being paid by taxpayers, the law should be changed to have them paid from the police pension funds. Along with limiting QI and actually prosecuting and convicting cops who screw up, this might begin to tip the scales towards action. And once we get that, flying cars should be simple.

    1. SHG Post author

      Every time QI is mentioned, someone feels compelled to ignore the point and instead dive into their simplistic fantasy solutions. I wish it wouldn’t happen, but it always does.

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