With a police reform movement growing across the U.S., there has been an increase in efforts to eliminate the qualified immunity defense for police officers through state reforms. But various police lobbies aggressively opposed these efforts and defeated dozens of qualified immunity reforms.
This continues a pattern of law enforcement opposition killing reforms ranging from ending civil asset forfeiture to limiting enforcement of federal gun control.
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 โclearly establishedโ by existing judicial precedent. No statute exists granting qualified immunity. Itย evolved over time based on a series of Supreme Court casesย and has been imposed on the entire country through the incorporation doctrine.
In simple terms, โclearly establishedโ means a court has previously held that a specific action has already been deemed unconstitutional in essentially the same circumstances as the current case. In a paper titled Qualified Immunity and Statutory Interpretation published by the Seattle Law Review, Ilan Wurman argues that the โclearly establishedโ test erects an extremely high hurdle to those trying to prove excessive force or a violation of their rights.
โThe qualified immunity test poses an almost insurmountable analytical problemโthe 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.โ
The only way to circumvent the qualified immunity defense is to create a cause of action in state court to sue police officers for violations of rights under the state constitution and specifically exclude qualified immunity as a defense. This creates an alternative legal path to hold police officers accountable and effectively bypasses the federal system.
Dozens of states considered such reforms, but they only passed in Colorado,ย New Mexico. and California. Of these three bills, only Colorado banned qualified immunity outright. The New Mexico law creates a cause of action to sue law enforcement agencies, not individual officers. The California bill closed some loopholes in state law, but left some wiggle room for qualified immunity defense.
Unsurprisingly, law enforcement lobby groups aggressively oppose 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 peopleโs rights with impunity.
According to the Washington Post, at least 35 qualified immunity bills died in state legislature over the past 18 months.
And why did they die?
According to the Post, “efforts failed amid multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true.”
Law enforcement lobbyists often use sob stories of police officers facing bankruptcy and losing their homes. And they warn elimination of qualified immunity will result in a mass exodus of police officers.
โIf we are going to improve the criminal justice system, it is not going to be by scaring away the best and brightest,โย National Fraternal Order of Police president Patrick Yoes told the Post. โAll of these attacks on law enforcement are not helping. Quality candidates can take a job anywhere.โ
Police unions spent tens of thousands of dollars buying ads in newspapers warning that eliminating qualified immunity would deter police from going after criminals. They placed op-eds in various publications claiming it would result in skyrocketing crime rates. Individual officers flooded legislators’ email boxes and testified before legislative committees opposing reforms.
According to the Washington Post, a New Mexico sheriff testified that ending qualified immunity would mean officers could โlose everything they have, including potentially losing their homes and displacing their families.โ A retired deputy sheriff wrote an opinion piece published by an Albuquerque newspaper claiming that qualified immunity reform would make โpolicing the most undesirable job in America.โ
A full-page ad in a Boston paper paid for by a police union urged people to contact their state legislators to oppose reforms in Massachusetts. Law enforcement lobbying efforts succeeded. The bill was amended to allow qualified immunity in most cases.
The Connecticut Police Chiefs Association wrote a letter to legislators threatening to withdraw support for police reform legislation if a ban on qualified immunity wasn’t removed. The letter claimed it would “destroy our ability to recruit, hire, and retain qualified police officers.โ The bill was subsequently amended to allow qualified immunity as long as officers have an โobjectively good faith belief that [their] conduct did not violate the law.โ It’s virtually impossible to prove otherwise.
The bill passed in California closed some of the loopholes in state law that will make it easier to sue police officers for violations of rights in state court and limit the possibility of โqualified immunityโ as a defense, but police lobbyists successfully watered that legislation down as well. According to the Post, a California Peace Officersโ Association official boasted about how the groupโs year-long effort was โable to chip awayโ at efforts to make it easier to sue. In the online post, Deputy Director Shaun Rundle said that โuntil recently, the bill lowered the threshold for peace officer โmisconductโ to such a level that would open the floodgates of litigation. .?.?.โ He claimed all that changed thanks to โlaw enforcementโs pushback.โ
Legislators are listening to police lobbyists instead of their constituents. A Pew Research Center survey found two-thirds of Americans oppose to use of qualified immunity by police.
Changing the Narrative
In New Mexico, police lobbyists managed to change the narrative. Under the original bill, victims would have been able to hold individual officers accountable for their actions. But under the amendment measure that passed, it shifts responsibility to law enforcement agencies. New Mexico Association of Counties attorney Grace Philips said cops shifted the debate. โThe rhetoric was all about individual responsibility, but that somehow got lost. It baffled me. This is taxpayer accountability, not law enforcement or officer accountability.โ
Stephanie Maez accuses an Albuquerque homicide detective of framing her son for murder. Her son was ultimately released and vindicated. She supported attempts to end qualified immunity in New Mexico, but was disappointed the option to sue individual officers by name was amended out of the bill. She says heavy pressure from police unions drove the change.
โIf a lawmaker is concerned about police coming out and endorsing their opponent in the next election cycle, they will think twice before they do the right thing,โ Maez told the Post. โWith crime being such a huge issue here, lawmakers donโt want to look soft on crime.โ
Supporters of the bill said it wouldn’t have passed without the changes. Speaker Brian Egolf (D) told the Post it was “the hardest legislative effort I have been engaged in since Iโve been a speaker.”
โI certainly understand why some members or advocates wanted individual officers to be defendants, but my objective was to get the best bill possible. We have made the road to justice much shorter.โ
Liars
In their zeal to maintain their legal protections, some of these law enforcement lobbyists outright lie.
Cato Institute policy analyst Jay Schweikertย chronicled some of the โmisrepresentationsโ about qualified immunityย 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. Theย National Association of Police Organizationsย (โNAPOโ)ย spun this yarn inย a letter of oppositionย to the George Floyd Justice in Policing Act signed by the organizationโs executive director and general counsel William F. Johnson.
โWith the change to qualified immunity,ย an officer can go to prisonย 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 beย making criminals out of decent copsย enforcing the laws in good faith.โ
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.
โ It beggars belief to think that he is unaware that qualified immunity is a civil doctrine, not a bar to criminal prosecution.โ
Johnson was also quoted in aย Washington Timesย article.
โYouโve 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,ย that officer can still go to prisonย for an unintentional act that unknowingly broke an unknown law.โ [Emphasis added]
Schweikert called the assertion โastounding.โ
โOne 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,โ he wrote.
Police lobbyists also claim that ending qualified immunity will subject cops who havenโt violated anybodyโs constitutional rights to civil damages. This is untrue. The legal doctrine is a shield for officers whoย haveย violated a personโs rights. As Schweikert explains, โThe doctrine of qualified immunity only matters when a public official has, in fact, violated someoneโs federally protected rights. If a police officer hasnโt committed any constitutional violation in the first place, then they donโt need qualified immunity, because they havenโt broken the law at all.โ
Nevertheless, police lobbyists often claim qualified immunity merely protects officers who have acted โreasonablyโ or who havenโt violated the law. A Massachusetts police union that represents Boston police officers madeย the following statementย in opposition to reforms in their state.
โTo 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.โ
Itโs true that qualified immunity applies to all public officials, but Schweikert calls the last part of the statement โnonsense.โ
โThe claim that qualified immunity only applies when officers โact reasonably and within the rules and regulations of their respective departmentsโ is a pure invention, directly at odds with actual case law.โ
Theย Indiana State Police Association (โISPAโ) made a similar assertionย inย aย statementย in opposition to the โReforming Qualified Immunity Act.โ
โWhile there is no doubt that bad actors have brought this issue to the forefront, we believe thatย qualified immunity serves to protect all police officers legitimately performing their duties, and itย allows the public to recover damages in cases where an officer has violated the personโs rights.โ [Emphasis added]
Schweikert wrote that this isnโt just wrong.
โIt is basically the exact opposite of what qualified immunity actually does. โฆ Qualified immunity only matters when a public officialย hasย violated someoneโs constitutional rights, but where a court finds that right was not โclearly established.โ Police officers who are โlegitimately performing their dutiesโ โ i.e., acting lawfully โ do not need qualified immunity because, by definition, theyโre not violating anyoneโs rights in the first place.โ
Whether they’re lying, exaggerating, or merely selectively emphasizing certain facts, police lobbies are extremely powerful and exert tremendous influence on the legislative process. In fact, police organizations are among the most powerful lobbyists in the American political system. They almost always oppose reforms that would strengthen the protection of individual rights. And it’s not just qualified immunity. 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.
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