Various police lobbies have aggressively opposed efforts to eliminate the qualified immunity defense. Along the way, they have told outright lies.

Qualified immunity is a legal doctrine that shields cops from civil (not criminal) liability for actions taken in the line of duty unless they violate constitutional or statutory rights “clearly established” by existing judicial precedent. No statute exists granting qualified immunity. It evolved over time based on a series of Supreme Court cases.

In 1982, Harlow v. Fitzgerald established qualified immunity for federal government officials and set the stage for the current definition of qualified immunity. The Court held that government actors are entitled to qualified 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.” [Empashis added]

In practice, courts analyze qualified immunity cases under a test established in Graham v. Connor (1989) to determine whether an officer violated a “clearly established” constitutional right. Ilan Wurman explained the test in a paper titled Qualified Immunity and Statutory Interpretation published by the Seattle Law Review.

“The test requires courts to undertake an objective analysis of the circumstances surrounding the use of force. Even if a court decides that the use of force was unreasonable and thus unconstitutional, the second step of the inquiry is the qualified immunity analysis: Was it ‘clearly established‘ that this kind of force in this kind of circumstance is unconstitutional? If not, the officer escapes liability.” [Emphasis added]

In simple terms, “clearly established” means a court has previously held that a specific action has already been deemed unconstitutional in essentially the same circumstances as the current case. Wurman argues that the “clearly established” test erects an extremely high hurdle to those trying to prove excessive force or a violation of their rights.

“The qualified immunity test poses an almost insurmountable analytical problem—the permutations are infinite. A given situation is rarely exactly like another. There will always be sufficient distinguishing facts to decide that there was no clearly established law.”

Police Lies

A strong push for justice system reform, including the elimination of qualified immunity, exploded in the wake of the death of Geroge Floyd. Colorado recently passed a law creating a state cause of action in state courts to sue police officers when they infringe on “any constitutional right secured by the bill of rights of the Colorado constitution.” The law specifically states that qualified immunity “is not a defense” to such civil action. Other states are considering similar legislation. Four separate bills have been introduced in Congress.

Unsurprisingly, law enforcement lobby groups have aggressively opposed ending qualified immunity. Cops like the legal doctrine for obvious reasons. It provides a Teflon-coated legal shield making it very difficult for any claim for damages to stick. In effect, it allows cops to act aggressively and violate people’s rights with impunity.

In their zeal to maintain their legal protections, some of these law enforcement lobbyists outright lie.

Cato Institute policy analyst Jay Schweikert chronicled some of the “misrepresentations” about qualified immunity made by law enforcement lobby groups.

One of the biggest whoppers is that eliminating qualified immunity would open the door for police officers to be thrown in prison just for doing their jobs. The National Association of Police Organizations (“NAPO”)  spun this yarn in a letter of opposition to the George Floyd Justice in Policing Act signed by the organization’s executive director and general counsel William F. Johnson.

“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.”

This is an absurd statement. Qualified immunity has nothing to do with criminal liability. It only applies in civil cases.

As Schweikert points out, Johnson certainly knows this is B.S.

” It beggars belief to think that he is unaware that qualified immunity is a civil doctrine, not a bar to criminal prosecution.”

Johnson was also quoted in a Washington Times article.

“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.” [Emphasis added]

Schweikert called the assertion “astounding.”

“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,” he wrote.

Police lobbyists also claim that ending qualified immunity will subject cops who haven’t violated anybody’s constitutional rights to civil damages. This is untrue. The legal doctrine is a shield for officers who have violated a person’s rights. As Schweikert explains, “The doctrine of qualified immunity only matters when a public official has, in fact, violated someone’s federally protected rights. If a police officer hasn’t committed any constitutional violation in the first place, then they don’t need qualified immunity, because they haven’t broken the law at all.”

Nevertheless, police lobbyists often claim qualified immunity merely protects officers who have acted “reasonably” or who haven’t violated the law. A Massachusetts police union that represents Boston police officers made the following statement in opposition to reforms in their state.

“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.”

It’s true that qualified immunity applies to all public officials, but Schweikert calls the last part of the statement “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.”

The Indiana State Police Association (“ISPA”) made a similar assertion in a statement in opposition to the “Reforming Qualified Immunity Act.”

“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 wrote that this isn’t just wrong.

“It is basically the exact opposite of what qualified immunity actually does. … Qualified immunity only matters when a public official has violated someone’s constitutional rights, but where a court finds that right was not ‘clearly established.’ Police officers who are ‘legitimately performing their duties’ — i.e., acting lawfully — do not need qualified immunity because, by definition, they’re not violating anyone’s rights in the first place.”

Here’s another statement, this one by Deputy Attorney General of the United States Jeffrey Rosen in an op-ed for the New York Post opposing qualified immunity reform.

“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.” [Emphasis added]

Again, qualified immunity is not a protection for officers who have “acted lawfully.” As Schweikert points out, “The entire point of the doctrine is to protect officers who have broken the law, but where they violated rights that were not “clearly established.” As the Deputy Attorney General and a former adjunct law professor at Georgetown, Mr. Rosen surely knows better.”

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.

Mike Maharrey

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