Police reform cannot be fully achieved until we eliminate qualified immunity
As a country, we remain deeply divided on many issues, but the collective horror of police violence over the past year has prompted many Americans of different political persuasions to call for reform. Few communities have been spared the tragedy of a preventable police shooting, as we saw last October in Philadelphia with the death of Walter Wallace Jr., who was shot repeatedly by two police officers while he was in a mental health crisis. Wallace’s preventable death at the hands of the police was just the latest in a long line. The need to be held accountable for this conduct is obvious.
Sadly, here in Philadelphia, the public has little reason to trust the Philadelphia Police Department to hold their own responsibility for misconduct. A recent analysis showed that only 1% of civil complaints presented to the Internal Affairs Division of the PPD resulted in discipline for officers. If victims of police misconduct want to be held to account, they have to turn to the courts.
As civil rights lawyers, however, we know how difficult it can be to achieve this result. One of the most significant obstacles to our work is the doctrine of qualified immunity, a legal rule created by judges that has left a gaping loophole in the rules that apply to anyone who harms people. others in the performance of their duties.
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Qualified immunity requires a person bringing a lawsuit to prove that their “clearly established” rights have been violated – that is, a court has previously ruled that an official acted improperly in the process. a factually similar case. Even if the conduct of a police officer is clearly illegal, he may be protected by qualified immunity if no former officer has been prosecuted for identical behavior. For example, an officer who injures a victim by placing them in an unnecessary choke would only be held liable if an officer in a previous case used an unnecessary choke in similar circumstances. This rule allows police officers to avoid civil liability, even in the most serious cases.
Qualified immunity tells police officers they are above the law and tells them they can act with impunity. Here in Philadelphia, the doctrine of qualified immunity deals a particularly hard blow in light of PPD’s dismal record in internal affairs. Because PPD agents get a free virtual pass from their employers, qualified immunity robs Philadelphians of the only realistic way they have to hold officers accountable.
As recent experience shows, without accountability it is difficult to prevent officers from engaging in misconduct. Recent experience also shows us that there is a growing and broad consensus that police officers should face real legal consequences when they abuse their authority. With each new report of a preventable death, calls for change have multiplied.
Federal lawmakers now have the ability to answer these calls. Qualified immunity was created by judges, but it can be eliminated by law. The George Floyd Justice in Policing Act could do just that. The bill, which is now making its way to Congress, has garnered support from the civil rights community and the general public because it prevents officers from being treated as if they were above the law.
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We are saying that the bill could end qualified immunity because some senators have said that they want to change the law to allow those rules to remain in effect. Instead, they suggest that we either abandon our efforts to eliminate qualified immunity or replace it with increased employer liability, that is, the liability of law enforcement agencies that employ officers who make mistakes. While allowing police employers to be held accountable for the misconduct of officers is an important and necessary step, it is far from sufficient to address the problems that are obvious to anyone. Ultimately, we need individual agents invested in upholding people’s constitutional rights. This will only happen if the qualified immunity is removed.
Recent legislation in New York which ended qualified immunity in certain types of cases proves it. Shortly after the adoption of this law, the NYPD police union wrote to its members by advising them to ensure that they interact with civilians “within the limits of the law.“Every police officer in the country should receive a notice like this – and know that the force of the law is behind it. For this to happen, we must keep the Police Justice Act intact. Other than that, no set of policies, training or reporting requirements will allow us to fully realize the promise of police reform: to keep communities that have suffered for too long a safety.
Jonathan H. Feinberg is a civil rights lawyer in Philadelphia and vice president of the National Police Accountability Project. Lauren Bonds is the Legal Director of the National Police Accountability Project.