A Legislative Path to Reforming Qualified Immunity for Police Officers
Qualified immunity is a broken legal doctrine needing legislative reform; however, it does not need to be eliminated. It must be reformed.
The current qualified immunity doctrine does protect police officers who have committed unconstitutional acts—such as using excessive force or conducting unlawful searches and seizures—from civil liability. The legal doctrine immunizes police officers unless a plaintiff can show there is already a published case with virtually identical facts that found the officer’s behavior unconstitutional. This protection stems from Supreme Court precedent, not from congressional legislation.
Contemporary congressional efforts to fix qualified immunity have stalled with parties taking “all” or “nothing” approaches. This standstill leaves unresolved police qualified immunity issues that frustrate efforts to help resolve concerns with police accountability and assist in restoring community trust in policing. Courts will continue granting officers qualified immunity for patently obvious wrongs. It is reasonably foreseeable that four legislative reforms measures can eliminate qualified immunity’s abuses and guarantee a path to recourse for all victims of rights violations and while affording police officers the protection of qualified immunity if they act earnestly and in accord with legal precedent.
I am a former police chief. I know police are essential. Police reform is likewise essential and is a public good. In June of 2020, I founded the Institute for American Police Reform. Over the past year, through diligent and focused research, analysis, and scrutiny from diversely experienced police officials, criminal and civil law attorneys, academicians, and community leaders, we have identified a fair and pragmatic standard for reforming qualified immunity. This week, the Institute will release its White Paper on Qualified Immunity for Police Officers. While police qualified immunity is not the cornerstone of comprehensive reform, it is significant to help resolve issues with police accountability and to assist in restoring community trust in policing. The following is a summary of the key recommendations of the Institute for American Police Reform on qualified immunity for police officers.
Firstly, to receive qualified immunity, officers must show by clear and convincing evidence that their actions comported with binding legal precedent at the time of the incident. Officers should easily satisfy this standard if they acted in accordance with their training, but officers who breach the boundaries of constitutional rights would not be protected. Illustratively, two police officers stole $225,000 during the execution of a search warrant. In 2019, the Ninth Circuit granted qualified immunity because no court precedent existed deciding that stealing money seized pursuant to a warrant is unconstitutional. If, instead, the officers had to show legal authority supporting their actions, this case would have gone to trial—or more likely forced the court to decide the merits of the constitutional question.
Implementing a “clear and convincing” standard of review removes the overly granular analysis plaguing the qualified immunity standard. For instance, a court recently granted qualified immunity to officers who released a police dog on an individual surrounded by officers in a basement who had surrendered by raising his hands. A precedent case ruled that it is unconstitutional to release a police dog against someone who has surrendered by lying down outside, while another case permitted the use of a police dog against a fleeing suspect hidden inside. It would seem patently wrong to release a police dog onto someone who has already surrendered; nevertheless, the court granted qualified immunity to the officers. The ruling was that it was not “clearly established” as unconstitutional to release a dog against someone who surrendered by raising his hands, not lying down, and was inside and not outside. A “clear and convincing” standard, however, would let plaintiffs overcome such frivolous factual distinctions.
Secondly, courts must decide whether there was, in fact, a constitutional violation. Currently courts can skip the constitutional question if they grant qualified immunity because the law is not “clearly established.” This leads to rights perpetually remaining legally unclear. Requiring courts to decide the constitutional question will provide police and the public with necessary guidance on the scope of constitutional rights.
Thirdly, reform must end interlocutory appeals. These are immediate appeals that officers can take in the middle of a case when qualified immunity is denied—this is an atypical privilege in litigation that has turned into an unfair litigation tactic used to pressure settlement or delay justice. In many cases, a trial on the merits may even move more expeditiously than an interlocutory appeal and could obviate the need for an appeal if the officer wins.
Finally, if an officer receives qualified immunity—for example, because a court upsets prior precedent to clarify a constitutional right—the victim of the rights violation should have recourse against the officer’s employer. This ensures the victim is not the one bearing the costs for having their rights violated, but neither is the officer personally liable for acting in a way previously permitted by law.
Although the IAPR White Paper discusses reform at the federal level, reform of qualified immunity for police officers should also occur at the state level and indeed, already has in several states. State level reform can include additional levers such as damage caps, indemnification policies, insurance requirements, or fee-shifting.
It is the hope of the Institute for American Police Reform that our comprehensive paper will assist in encouraging fair and reasonable legislation on police qualified immunity. Our proposed standard will correct the most egregious abuses of qualified immunity and many of the less egregious but nevertheless undesirable cases. Importantly, it does so without eliminating qualified immunity entirely, recognizing there may be cases where police officers deserve the protections of qualified immunity.
Together, these four changes offer a meaningful and fair path for police reform. Congress needs to act.
