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Police Under Scrutiny October 9, 2020 – Volume 30, Issue 36 Can law enforcement restore public trust? By Christina L. Lyons
Pro/Con
Should Congress abolish qualified immunity for police officers?
Pro Jay R. Schweikert Policy Analyst, Cato Institute. Written for CQ Researcher, October 2020
The substance of constitutional rights is meaningless if state actors can violate those rights with impunity. Accountability must therefore be a top priority for anyone interested in criminal justice reform.
But accountability for public officials — especially members of law enforcement — has been severely undermined by a judicial doctrine called “qualified immunity,” which shields state actors from liability for their misconduct, even when they break the law.
One of our primary federal civil rights statutes — generally called Section 1983 after its place in the U.S. Code — says that any state actor who violates someone's constitutional rights “shall be liable” to the party injured. But under the doctrine of qualified immunity, the Supreme Court has held that such defendants cannot be sued unless they violated “clearly established law.”
In practice, this is an incredibly demanding standard, as it generally requires civil rights plaintiffs to show not just a clear legal rule, but also a prior case with functionally identical facts. In other words, it is entirely possible — and quite common — for courts to hold that government agents did violate someone's rights, but that the victim has no legal remedy, simply because that precise sort of misconduct had not occurred in past cases.
Qualified immunity thus routinely permits egregious unconstitutional misconduct to go unaddressed. That obviously hurts the victims of police misconduct, but it also hurts the law enforcement community by depriving officers of the public trust and confidence that is necessary to do their jobs safely and effectively.
When the judiciary routinely permits police officers to get away with unconscionable constitutional violations, members of the public can hardly be expected to have much trust or respect for officers in their community. And that diminished trust and respect makes the job of
Con Chris Balch Local Government Attorney, Balch Law Group. Written for CQ Researcher, October 2020
The Supreme Court created qualified immunity to do two things: to ensure that local government officials and police officers know that what they are doing violates the law, and to provide a defense that would not unnecessarily detract from the important work that public officials do. The importance or frivolity of the second policy basis for qualified immunity can be debated. The first reason should not be subject to debate under our Constitution.
It is a fundamental aspect of due process of law (the protection from any government taking one's property or liberty), enshrined in the Fifth Amendment to the U.S. Constitution, that people ought to know what they can and cannot do before they are held accountable for their actions. This is true everywhere in the law. The law does not lock people up if a statute was unclear about what the bad conduct was, nor do we impose money damages on wrongdoers if their conduct was not proscribed by clear rules.
Qualified immunity established the requirement of fair notice in the common law of civil rights litigation because it does not exist in the statute's text. The statute merely provides that individuals can receive damages if their rights are violated. What are those? Do they change over time? They certainly have, because, for instance, in the 1920s you could be arrested and jailed for having protested World War I, but in the 2020s our republic has embraced the concept of the marketplace of ideas championed by Justice Oliver Wendell Holmes in a 1919 dissent.
Where then are local officials, including police, to understand what they can do and cannot do? Qualified immunity ensures that public officials understand that what they are doing in the circumstances violates the law. Officials then have the opportunity to make a different decision, or if they proceed, the court can be confident that the choice was intentional and liability appropriate. In the words of the Supreme Court, qualified immunity protects “all
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policing far more difficult and dangerous, even for officers who strive to act in a lawful, professional manner.
For all the many complex problems this doctrine creates, the solution is quite simple — abolish qualified immunity. Congress could easily pass legislation clarifying that Section 1983 means what it says — that when a state actor violates someone's constitutional rights, they “shall be liable to the party injured.”
Ensuring real accountability is an indispensable component of meaningful policing reform, and there is no greater barrier to police accountability than qualified immunity. The time has come for Congress to abolish this pernicious doctrine.
but the plainly incompetent or those who knowingly violate the law.”
For Congress to repeal qualified immunity would fundamentally alter the constitutional notice afforded to local officials. Those officials ought to be allowed and encouraged to understand, when they act, they could face liability for that decision. If they do not know what is allowed or disallowed, they cannot know whether their choice will cost them. Qualified immunity, therefore, furthers the important due process rights of public officials that would be lost if it were eliminated by Congress.
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Document APA Citation Lyons, C. L. (2020, October 9). Police under scrutiny. CQ researcher, 30, 1-60. http:// library.cqpress.com/
Document ID: cqresrre2020100906 Document URL: http://library.cqpress.com.db12.linccweb.org/cqresearcher/cqresrre2020100906
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