An internet lifetime ago, I wrote that the dreaded Qualified Immunity was “a problem, but not the problem.” It’s since caught fire on social media as the cure for what ails police brutality, with every blue check pundit putting it at the top of the list of fixes that will end police violence, save the next George Floyd or Breonna Taylor, and make us run faster and jump higher.
So what? QI is bad law, should be eliminated and what’s the harm of using this moment in time to eliminate it, whether by legislation as offered by Rep. Justin Amash or by the Supreme Court as it may revisit the doctrine. Of course, few who have jumped on the Anti-QI bandwagon grasp that the Supreme Court doesn’t serve as representative body, to be petitioned for change or influenced by ratio on twitter.
Naturally, the New York Times has taken up residence in the caboose, explaining how eliminating the “obscure” legal doctrine of QI will make your whites whiter and your colors brighter. What QI does is preclude recovery in a post-hoc civil action, which occurs in 3.9% of § 1983 cases and, when it doesn’t, the municipality covers the cost in 99.98% of the rest.
What it won’t do is stop cops from beating people, killing people, violating their constitutional rights or ignoring the First Rule of Policing. As the adage goes, “better to be tried by 12 than carried by six.” Get rid of QI and your family can recover for your death, but you’re still dead.
There is a prolix theoretical rationale of incentives to argue that liability at the back end will alter conduct on the front end, that if a cop realized he could be liable for his actions, he would be more circumspect, more caring, less prone to violence and brutality. This is usually coupled with a variety of fantasy measures, such as being required to carry malpractice insurance, or not being indemnified by their municipal employer.
But between unions, shifting public perceptions (people forget, at moment like this when many are antagonistic toward police, that most people still favor police and want them to respond when they call 911) and political influences, are extremely unlikely to achieve and, even if they were achieved at great political cost, theoretical as to their impact. Even if the cost of a constitutional violation came out of pocket, would a cop take any greater perceived risks to his life or welfare?
So why then has QI become the flavor of the moment? It’s easily expressed, having a two-word name that the groundlings can latch onto and it’s been pounded on by those who have fought long and hard for its elimination. Chicago prawf Will Baude has written extensively about why it should be eliminated in briefs and law review articles, providing strong intellectual arguments against QI. Cato’s Clark Neily has twitted incessantly, providing inflammatory twitter-depth snippets. And the dilettantes, for whom the deeper problems with police are too intractable and ambiguous grab hold of whatever fix is closest and easiest to pump.
And what’s so bad about seizing upon QI as something to eliminate, particularly given that it’s something I’ve argued against for so long? It’s the same problem that arises with every simplistic activist argument, that Menckian compulsion to find a simple solution to complex problems that not only won’t do the trick, but diverts focus from trying to seize the moment to address the harder, more complicated, more difficult and intractable problems.
Before the Supreme Court created Qualified Immunity out of nothing, Section 1983 existed and cops still violated people’s civil rights, beat them and killed them. If the question is how to stop cops from doing this, then there are serious things to be faced, addressed and fixed, that will have far greater direct impact on cops, personally, and police culture, generally. But if there’s a simple easily-characterized but tangential fix, too many will put their time and effort into railing about the easy answer and ignoring the harder one.
If the outcome is that QI is eliminated, whether by legislation or decision, that won’t be bad thing at all. Indeed, it’s something I’ve long fought for and will applaud. But if what we are trying to accomplish at this moment, at this opportunity when so many have taken to the streets in opposition to the killing of George Floyd, is saving lives, then rallying around the elimination of QI while ignoring the core problem won’t save lives.
And to add one more unfortunate piece to the puzzle of how to deal with intractable societal problems, the perpetual tendency of society to lapse into hypocrisy will return when the winds of woke turn. Should Biden be elected president, the same people who rail against the violence and abuse of police toward today’s protesters will thrill at the use of force against tomorrow’s right-wing protesters. They will demand the cops, the national guard, the army, be called out to forcefully thwart their right to protest, just as Trump does now when the protesters aren’t his “very fine people.”
There is no simple fix to any of this, no matter how much you want there to be so or how many people claim we could fix it right now, right this very moment, if only we did something. There are institutionalized roadblocks that will work against any solution, from police unions to LEOBR laws, pro-cop prosecutors to badgelicking apologists. And, of course, our love/hate relationship with the cops, who, for all they do wrong, remain our first call when we need them.
As New York PBA President Pat Lynch loves to say, “if you don’t like cops, the next time you’re in trouble, call a criminal.” And that’s what we do, hoping we get the responding officer who will help us rather than shoot us. Without QI, we will have a far easier time suing them after they shoot, but wouldn’t it be great if they didn’t needlessly shoot in the first place? If only our efforts at this moment in time were focused on no one being beaten or killed rather than suing afterward.