The Big Apple’s shot callers, citing the need for justice for victims of police violence, recently voted to abolish qualified immunity for NYPD’s crime fighters. Democrat members of the House unilaterally rammed through H.R. 1280 last month, seeking to end qualified immunity for law enforcement officers nationwide. Its fate in the Senate is uncertain, but President Joe Biden, who a few months ago wondered aloud why officers couldn’t avoid unpleasant fatal shootings by simply wounding offenders in the leg, is likely to look on such legislation favorably. Qualified immunity, and the protection it provides officers from frivolous civil suits, has never looked more endangered.
What’s qualified immunity and why shouldn’t our collective eyes glaze over when we read about it? Qualified immunity has protected generations of officers since the late 1960’s from spending nights sleeplessly staring at ceiling tiles, wondering if their family would be financially ruined. In short, qualified immunity is a legal doctrine that protects officers from civil lawsuits by applying a two-pronged test to claim by a plaintiff: (1) did the officer violate a person’s Constitutional rights, and (2), did the officer’s actions violate a clearly established law or rule?
Only if the court rules the facts presented justify a “yes” to both questions may the lawsuit properly proceed.
Critics of qualified immunity claim the doctrine of qualified immunity is not ensconced anywhere in the U.S. Constitution or in any federal statue, as it was a creation of the U.S. Supreme Court in 1967. They claim the doctrine has allowed officers to avoid accountability and keeps victims from obtaining justice by protecting the sometimes unconstitutional but not clearly established behavior of out-of-control police officers.
Every police academy law instructor has probably taught, “Bad facts make bad law.” This truism is perfectly illustrated today as opponents of qualified immunity point to dozens of correctly decided qualified immunity cases whose facts nonetheless should make any good cop uncomfortable.
Eliminating qualified immunity due to a small sample of cases since 1967 (as compared to all arrests made or uses of force since that time), would open the floodgates to lawsuits as every decision an officer makes is profitably dragged into the nearest federal courthouse. Even some proponents of abolishing qualified immunity admit it would increase the number of lawsuits against police. This is why any legislation ending qualified immunity is, in practice, the Plaintiff Attorneys Full Employment Act of 2021.
Congressional Democrats formally labeled H.R. 1280 after George Floyd, a standard political maneuver that like most such tactics is heavy on emotion and light on context. As the nation watches Derek Chauvin’s broadcast murder trial, where he faces some 40 years in prison for the death of Mr. Floyd, who can say we are not watching justice being served? If qualified immunity goes away, police officers across the country will once again pay with their lives and livelihood for the sins of others. That’s neither justice nor just.