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 “clearly established” by existing judicial precedent. No statute exists granting qualified immunity. It evolved over time based on a series of Supreme Court cases and has been imposed on the entire country through the incorporation doctrine.
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. In a paper titled Qualified Immunity and Statutory Interpretation published by the Seattle Law Review, Ilan 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.”
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, 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 people’s 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.
“If we are going to improve the criminal justice system, it is not going to be by scaring away the best and brightest,” National Fraternal Order of Police president Patrick Yoes told the Post. “All of these attacks on law enforcement are not helping. Quality candidates can take a job anywhere.”
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 “lose everything they have, including potentially losing their homes and displacing their families.” A retired deputy sheriff wrote an opinion piece published by an Albuquerque newspaper claiming that qualified immunity reform would make “policing the most undesirable job in America.”
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.” The bill was subsequently amended to allow qualified immunity as long as officers have an “objectively good faith belief that [their] conduct did not violate the law.” 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 “qualified immunity” as a defense, but police lobbyists successfully watered that legislation down as well. According to the Post, a California Peace Officers’ Association official boasted about how the group’s year-long effort was “able to chip away” at efforts to make it easier to sue. In the online post, Deputy Director Shaun Rundle said that “until recently, the bill lowered the threshold for peace officer ‘misconduct’ to such a level that would open the floodgates of litigation. .?.?.” He claimed all that changed thanks to “law enforcement’s pushback.”
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. “The rhetoric was all about individual responsibility, but that somehow got lost. It baffled me. This is taxpayer accountability, not law enforcement or officer accountability.”
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.
“If 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,” Maez told the Post. “With crime being such a huge issue here, lawmakers don’t want to look soft on crime.”
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 I’ve been a speaker.”
“I 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.”
Liars
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.”
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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