The push to eliminate qualified immunity as a defense to violation of a person’s constitutional rights by a government actor is beginning to bear fruit, which is great. It’s not that there is no rationale supporting it, or that it hasn’t been grossy oversold as the “cure” to police misconduct, but the doctrine was imposed by judicial fiat by the Supreme Court in Harlow v. Fitzgerald in 1982 has allowed flagrant violations of constitutional right to go unremedied. A right without a remedy is no right at all.
The Supreme Court made matters worse in Pearson v. Callahan, where the Court held that a court need not decide whether conduct violated a constitutional right before granting QI on the basis that the right in issue was not “clearly established.” It then made matters worse again in White v. Pauly, where the Court required a level of exactitude to establish that conduct violated “clearly established law” as to allow a court to seize upon the most minute and quasi-relevant detail to distinguish the case at bar and allow the defense.
All things considered, the defense of QI hasn’t had nearly as great an impact on § 1983 and Bivens cases as many people believe, resulting in the dismissal of only 3.9% of cases. Still, it’s bad law and, when invoked, produces some outrageous outcomes.
The New York City Council, as it’s wont to do, decided to leap into the fray by enacting a local ordinance precluding the defense of qualified immunity.
A year after nationwide protests against police brutality ignited calls for reform, the New York City Council passed legislation on Thursday aimed at reining in police misconduct by making it far easier to sue officers for conducting illegal searches or using excessive force.
In essence, the bill establishes a local right — the protection against unreasonable searches and the use of excessive force — and says officers cannot use the qualified immunity defense against it. As a practical matter, it allows people to sue the police for damages under local law, rather than federal or state statutes.
This isn’t a law enacted by Congress, and bears only upon the City’s Administrative Code.
The bill would establish a local right of security against unreasonable search and seizure and against excessive force regardless of whether such force is used in connection with a search or seizure. If an NYPD employee, or a person appointed by the Police Commissioner as a special patrolman, allegedly deprives a person of this right, the person would be able to bring a civil action against the employee or appointee, as well as against the employee or appointee’s employer, within three years after deprivation of the right. The employee or appointee (or their employer) would not be allowed qualified immunity, or any substantially equivalent immunity, as a defense.
The language of the ordinance provides that it applies only to police rather than all government actors, only for individuals and not businesses, only to searches and seizures and excessive force and not other constitutional violations. It provides for actual and punitive damages or $1000, and an award of attorneys fees. But most significantly, it only applies in courts of competent jurisdiction. What that means is that this law is limited to actions brought in New York City Civil Court, which has a monetary jurisdictional limit of $25,000. While it could be included in an action before other courts, assuming there is an otherwise viable cause of action within the court’s jurisdiction, its rejection of QI would only apply to the action brought under the admin code.
So for all the understandable hoopla by proponents of eliminating QI, does this law actually do much of anything? There is a question whether the New York City Council has the authority to legislate away a defense established by the Supreme Court in Harlow.* Does this ordinance mean that when the City defends its cops, it will not interpose a defense of qualified immunity and will not seek dismissal on that basis? That’s not what the ordinance says, but it could well be the implication for the Corporation Counsel, which is the city’s in-house law department.
But if so, would the police officers involved accept “their lawyers” refusing to use an available defense? Granted, the cops aren’t the ones digging in their pockets, and if the City wants to give out more money than it normally does, which is not insignificant, who are the cops to complain. Yet, the rulings implicate the cops’ careers and reputations as well, so they are not without a legitimate interest in their defense. And if their putative lawyers choose not to invoke an available defense, would that constitute legal malpractice and make the City liable to the cops as well as the cops’ victims?
It’s unlikely that anyone who suffered a serious injury as a result of police excessive force will want to limit their recovery to $25,000. For serious cases, the City might be thrilled to send out checks as nuisance value, as it costs substantially more to defend the cases than just send a check.
But there is one area where this has the potential to have a significant impact, and that’s with regard to petty claims of force such as protesters subject to tear gas, pushing, punching and beating which falls below the threshold of causing serious or permanent injury. Given that the ordinance provides for attorneys fees without limit, this could give rise to a cottage industry of lawyers willing to take on any claim of protesters, or, if people are not entirely honest, claims of people who say they were at a protest where the cops used OC to disperse a crowd of protesters. It’s not as if anyone has an official list of names of people present.
This could mean that thousands of actions for $25,000 are brought in Civil Court without any real way to tell whose claim is legit or disprove testimony of a plaintiff about what happened, as the claims would be individualized while the police action was directed at an amorphous and anonymous group.
On the one hand, this would finally provide recourse for protesters wrongfully gassed or beaten by overbearing police actions. On the other, this would be rife for abuse, jam up the Civil Court, be very expensive to a city in financial extremis and create a very difficult situation for police to address “mostly peaceful” protests where some indistinguishable people in the crowd are engaging in serious violence to police and businesses.
*Some, including City Council Speaker Corey Johnson, have sought to sell this law by claiming QI was a product of “systemic racism” that arose in 1967. It’s not. While the first instance where police were given qualified immunity was in Pierson v. Ray, which was noted in passing as the first example of the phenomenon, it was not what we understand to be the doctrine of qualified immunity. Indeed, Pierson wasn’t even mentioned by the Supreme Court when establishing qualified immunity, but it does make a good racial hook to sell QI elimination even though it has nothing to do with “systemic racism.”