As TFTP has reported, when it comes to police accountability, one overarching question remains. ‘Do we want to live in a society whereby law enforcement officials can completely violate a person’s constitutional rights and get away with it?’ For our society to be free, the answer to that question must be a resounding, powerful, unwavering, ‘Hell No!’ Sadly, police in America who violate the rights of citizens currently enjoy this lack of accountability all thanks to the incredibly flawed legal doctrine of Qualified Immunity.
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 recently began receiving much needed scrutiny after the death of George Floyd. 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.
As we reported in June, Colorado Governor Jared Polis signed an omnibus reform bill into law to end qualified immunity for police officers in the state.
“This is a long overdue moment of national reflection,” Polis said at the signing ceremony. “This is a meaningful, substantial reform bill.” Indeed it was.
Other municipalities have followed a similar path since then with federal judges moving to eliminate it on a national scale.
Not surprisingly, the push to take away their pass to violate rights and abuse the rights of citizens has garnered the attention of the police unions. And, also not surprisingly, they are deceiving people into keeping it.
In a recent report from the CATO Institute, policy analyst Jay Schweikert detailed some of the blatant “misrepresentations” used by police unions to justify keeping Qualified Immunity.
The National Association of Police Organizations (“NAPO”), submitted a letter to Congress to explain their opposition to the George Floyd Justice in Policing Act, which would eliminate qualified immunity for law enforcement officials. The letter falsely claimed that if this doctrine is ended, cops can go to jail for simply doing their jobs.
With the change to qualified immunity, an officer can go to prison for an unintentional act that unknowingly broke an unknown law. We believe in holding officers accountable for their actions, but the consequence of this would be making criminals out of decent cops enforcing the laws in good faith.
As Schweikert points out, the letter was written and signed by William F. Johnson, NAPO’s Executive Director and General Counsel. Given Johnson’s history as a former prosecutor, the idea of him claiming he is unaware that qualified immunity is a civil doctrine and not used to bar criminal prosecution of cops, is either glaring incompetence or blatant misinformation.
He didn’t just say it in the letter to Congress, either, Johnson doubled down on his falsehoods in an interview with the Washington Times:
You’ve got federal lawmakers proposing a federal law that says that even when the federal law is so unclear as to be unknowable by any reasonable officer, that officer can still go to prison for an unintentional act that unknowingly broke an unknown law.
Schweikert accurately calls this assertion by Johnson, “astounding,” adding that “one of the largest police organizations in the country is opposing qualified immunity reform based on the clearly erroneous assertion that the doctrine has anything to do with criminal prosecution.”
But that’s not all, the police union that represents Massachusetts also chimed in with their version of disinformation too.
“To be clear, Qualified Immunity is a bedrock protection extended to all public employees. Not just police officers. It does not protect bad cops. In fact, it only protects police officers who act reasonably and within the rules and regulations of their respective departments.”
The first portion of this statement is true, Qualified Immunity is extended to all government workers. However, as Schweikert notes, the second part is “nonsense.”
“The claim that qualified immunity only applies when officers “act reasonably and within the rules and regulations of their respective departments” is a pure invention, directly at odds with actual case law,” he writes.
The Indiana State Police Association (“ISPA”) jumped on board too and made this false assertion too.
“While there is no doubt that bad actors have brought this issue to the forefront, we believe that qualified immunity serves to protect all police officers legitimately performing their duties, and it allows the public to recover damages in cases where an officer has violated the person’s rights.” [Emphasis added]
Schweikert points out that “this is not just wrong, it is basically the exact opposite of what qualified immunity actually does.”
Either these top cops are completely uninformed about what qualified immunity does or they are engaging in a campaign of disinformation to protect themselves by attempting to claim that qualified immunity to there to protect good cops who don’t break the law. This is utter nonsense as qualified immunity is not for good cops who haven’t broken the law, it directly applies to cops who have broken the law but have done so in a situation that was not “clearly established.”
Nevertheless, even the Deputy Attorney General of the United States, Jeffrey Rosen, made similar misrepresentations, noting:
Qualified immunity is a legal doctrine that prevents law-enforcement officers and other officials from being personally subjected to civil lawsuits when they have acted lawfully and haven’t violated clearly established rights. . . . Officers should be — and are — held accountable when they violate the law. They shouldn’t also have to worry about being personally sued for doing their jobs, when they follow the law.
Again, this is simply not true and Rosen, a former adjunct law professor at Georgetown, most certainly knows better.
Mike Maharrey at the Tenth Amendment Center, sums up this disinformation campaign quite accurately:
Police organizations are among the most powerful lobbyists in the American political system and they almost always oppose reforms that would strengthen the protection of individual rights. They generally lobby against asset forfeiture reform, limits on surveillance, ending police militarization, barring enforcement of unconstitutional gun control and anything that will limit the growing national police state.
And as we have seen – they don’t hesitate to misrepresent the facts in order to block necessary reforms.