Springfield, IL — Over the past few years, the residents of Illinois — especially those who live in Chicago — have been subjected to a militarized police state occupation. Innocent family after innocent family each waking up in the middle of the night as heavily armed storm troopers throw flash bangs into their homes, haul them outside in the cold, point guns at their heads, and even handcuff small children. These families are being terrorized in their own homes, many of them left with PTSD, and no one is being held accountable — because the state is the one behind the terror — and the doctrine of qualified immunity protects them all.
House Bill 1727, introduced by Rep. Curtis Tarver sets out to change this paradigm. The aptly titled Bad Apples in Law Enforcement Accountability Act aims to end qualified immunity for cops who violate the rights of citizens.
For those who may be unaware, the Supreme Court created qualified immunity in 1982. With that novel invention, the court granted all government officials immunity for violating constitutional and civil rights unless the victims of those violations can show that the rights were “clearly established.”
The court held in Harlow v. Fitzgerald that government actors are entitled to this immunity due to the “need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.”
“Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
As Anya Bidwell points out, although innocuous sounding, the clearly established test is a legal obstacle nearly impossible to overcome. It requires a victim to identify an earlier decision by the Supreme Court, or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the official is immune. Whether the official’s actions are unconstitutional, intentional or malicious is irrelevant to the test.
The subject of Qualified Immunity began receiving much needed scrutiny after the death of George Floyd last year. A bipartisan push began across the country to remove the ability of cops to abuse the doctrine essentially granting them immunity to inflict violent punishment on often innocent people so long as that exact same violations of rights hasn’t taken place in that same jurisdiction.
House Bill 1727 is one of many bills across the country attempting put an end to this unchecked violations of rights. As the Daily Herald reports, HB 1727 aims to remove the court doctrine of qualified immunity for officers, opening them up to civil litigation if they participate in the “deprivation of any individual rights” guaranteed in the Illinois Constitution.
The bill goes further than other bills we’ve seen as it also makes cops liable for failing to intervene if such a deprivation of rights is occurring in front of them.
“Qualified immunity is one defense in a host of defenses that law enforcement has,” Tarver said as he recalled the killing of George Floyd. “Someone putting their knee on someone’s neck for nine minutes when they’ve already surrendered, that’s not a split-second decision.”
“We can no longer just accept the presence of bad apples in law enforcement as an inevitable truth,” Peter Hanna from ACLU of Illinois told the House Restorative Justice Committee last week as the bill moved forward. “No reform, no matter how well intentioned, can be effective until we add real police accountability.”
Naturally, the police unions hate the idea of holding bad apples accountable and say that any such talk of police accountability will lead to a shortage of cops.
“We have the membership rolls, we see the outcome, we know we’re losing membership,” said Andrew Bodewes of the Illinois Fraternal Order of Police. “We’re concerned that a change like this would further complicate that.”
In other words, telling cops that they should not beat up and kill citizens because it could lead to them being held accountable, is bad for recruiting more cops. The bill’s sponsor says that is not necessarily a bad thing.
“If this leads to less police officers who are attracted to law enforcement because they know that they can demonize people and brutalize people, then I’m all for it,” Tarver said. “If this leads to attracting the right people, I’m all for it as well.”