Yahoo Movies Qualified immunity: 8 myths about why police need it to protect the public
The legal doctrine of qualified immunity contributes to the erosion of public confidence in policing and makes us all less safe.
As it stands, if unlawful or unconstitutional action by a government official has no “clearly established” precedent, there is no grounds for a lawsuit – the official is protected by qualified immunity. Because two cases are seldom exactly the same, this threshold becomes nearly impossible to meet, and civil cases against offending parties are dismissed as a result.
All of us, law enforcement included, must realize that communities distrust or outright fear police because we are rarely held accountable. If we are to have worthwhile police reform in this country, we must end qualified immunity.
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The good news for my law enforcement colleagues is that qualified immunity is not necessary to protect police or to keep the public safe. Let’s explore a few myths and facts about ending qualified immunity:
Myth 1: Without qualified immunity, police departments won’t be able to recruit and retain personnel.
Fact 1: The debate over qualified immunity is not the reason police recruitment and retention is so difficult.
Law enforcement recruitment and retention have suffered in recent years for a variety of reasons, but the issues driving that trend have always existed. They include noncompetitive pay and the danger of the job, mixed with newer struggles like public perception of the police.
In fact, ending qualified immunity would increase public confidence in policing as an institution and improve community relations. Data from Colorado, one state that recently passed qualified immunity reform, indicates that it did not experience a mass exodus of police officers in the wake of the new law. Instead, it experienced its fewest unscheduled departures in a three-year period.
Myth 2: Officers will be distracted by the threat of a lawsuit on the job and will not be able to keep people safe.
Fact 2: Officers have little reason to fear that they will be personally sued, let alone successfully.
State-led efforts to reform qualified immunity often offer personal liability protections for officers. Colorado, for example, caps personal liability at 5% of the damages, up to $25,000.
Law enforcement officers who break the rules often are not the ones footing the bill for lawsuits; it’s almost always the cities they work for.
While it is possible to hold an officer financially responsible, such an outcome is rare in practice because cities usually indemnify, or offer civil or legal protections to, law enforcement for on-the-job acts. That is true even when officers were found to have committed misconduct.
Myth 3: Police are just following their training.
Fact 3: Police are trained to use force within the boundaries of the law.
Law enforcement is allowed to use only the amount of force necessary to subdue suspects, which is how they are supposed to be trained.
Even police training programs that have attracted scrutiny for using a “warrior versus guardian” mentality tell officers to use only reasonable force when encountering resistance. The courts also have been clear in this regard.
Myth 4: Frivolous lawsuits can ruin the lives of cops.
Fact 4: Law enforcement is robustly protected from frivolous lawsuits.
Law enforcement officers have always had ample protection from frivolous lawsuits, in the form of indemnification. While it is possible to hold officers personally liable in a lawsuit, they are almost always shielded from liability by other laws.
In fact, municipalities usually pay attorneys’ fees. In 2014, a New York University study found that departments, not individual officers, were held liable in 99.8% of claims. Ending qualified immunity will not change this practice.
Recent laws to abolish qualified immunity have carefully considered the importance of not harming the financial security of current or former law enforcement officers.
Myth 5: Police departments are already firing officers for misconduct.
Fact 5: Police departments are thwarted when trying to hold bad cops accountable.
In 2017, a Washington Post investigation found that at least 1,881 officers were fired in the preceding decade, but more than 450 officers were reinstated after union contract–mandated appeals. And last year, The New York Times found that arbitrators reinstated fired officers in about half of the cases in Minnesota, one of the few states that make decisions readily accessible.
Myth 6: Ending qualified immunity makes it possible for police officers to be labeled as criminals for doing their job.
Fact 6: Qualified immunity is a civil, not criminal, proceeding.
Qualified immunity involves civil liability only – financial compensation in a lawsuit – not criminal liability. The court system would still decide criminality in a separate proceeding.
By holding individuals accountable for their actions while on duty, fewer people are likely to characterize law enforcement officers as criminals for doing their job because they’ll witness equal application of the law, dispelling the myth that all cops are bad.
Myth 7: Ending qualified immunity will cause municipalities to go bankrupt.
Fact 7: Municipalities are protected from substantial financial damage.
Most small and midsize municipalities already carry liability insurance that covers police brutality and related lawsuits. That is because their budgets are smaller than big-city budgets, which are big enough to safely absorb the cost of litigation. New Mexico’s recent law banning qualified immunity, for example, places a $2 million cap on municipality liability.
Myth 8: Judges and juries don’t understand the types of split-second decisions officers make on the job.
Fact 8: Judges and juries already tend to defer to officers.
Because qualified immunity involves an earlier decision by a judge on whether an officer’s actions were reasonable, split-second decisions will be evaluated based on their merits.
Juries get to hear claims only after a judge has affirmed that an officer will not get immunity, meaning jurors are already instructed that an action was unreasonable or unlawful at the onset of a case.
Retired Lt. Diane Goldstein worked for the Redondo Beach Police Department in California for 21 years. She is the executive director of the Law Enforcement Action Partnership, a nonprofit group of officers who want to transform policing by advocating for drug policy and criminal justice reforms.
This column is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. Stand Together does not provide editorial input.
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This article originally appeared on USA TODAY: Policing qualified immunity: 8 reasons why police don't need it
