The news that “police reform” negotiations in the Congress have collapsed should surprise no one who’s been following the brouhaha over “qualified immunity.” In a nutshell, Democrats have squared off with Republicans over it. Dems want less qualified immunity, while Repubs want the same level, or more.
In essence, qualified immunity, as currently construed, largely protects cops from being sued by plaintiffs who allege excessive force or some other Constitutional violation of their rights.
The existing doctrine of qualified immunity shields the officer from being sued, if the officer’s action was “objectively reasonable.” Police like this provision, because it assures them that, in the heat of the moment when they’re protecting the public, they won’t face the risk of a lawsuit that may later cost the officer his job. Democrats and Republicans historically have agreed on which police behaviors are “objectively reasonable” and which aren’t. But that balance has changed.
If I put myself in the position of a cop in Oakland who’s responding to, say, an armed person violently acting out in a public place, I would not want to have to worry that if I neutralize the person, using techniques that my judgment and training tell me are legal, I’ll be personally sued anyway, and possibly come before a jury that may be biased against cops. This is why police are fighting so desperately against any reduction in their qualified immunity.
In the case of the H.R. 7120, the George Floyd Justice in Policing Act of 2020, the relevant language on qualified immunity is this: “It shall not be a defense or immunity in any action brought under this section against a local law enforcement officer (as such term is defined in section 2 of the George Floyd Justice in Policing Act of 2020), or in any action under any source of law against a Federal investigative or law enforcement officer (as such term is defined in section 2680(h) of title 28, United States Code), that—
“(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or
“(2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the defendant, or that at such time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.”
In other words, a cop who’s being sued would no longer be able to claim, as cop plaintiffs have in the past, that he believed his actions were “reasonable.” H.R. 7120 would shift the burden of proof from the plaintiff—who historically has had to prove the officer’s guilt—to the cop, who would now have to prove his innocence. Police departments and their unions argue that the inevitable outcome of ending qualified immunity would be many more lawsuits against cops, with vastly increased city expenditures for lawyers’ fees and plaintiffs’ rewards, a further drop in police morale, and a continuing decrease in the number of people willing to be cops, especially in a city like Oakland.
The latest breakdown in talks between Democrats and Republicans shows how severe the impasse is. Feelings are strong on both sides. My own feeling is, Do progressives really expect police and Sheriffs’ departments to stand quietly by while their officers are faced with lawsuits that, however frivolous, could bankrupt them, upset their lives and their ability to support their families, and possibly land them in jail, for doing something they thought was right and legal?
Look: as we saw from the George Floyd trial, juries are quite capable of telling the difference between “reasonable” and “unreasonable” police behavior. Derek Chauvin’s action was clearly unreasonable and excessive; he murdered George Floyd, and he properly paid the price. Less clear—in more of a gray zone—is whether Chauvin’s fellow officers are guilty of anything and, if they are, of what? How far does the cone of guilt spread outward from Chauvin to the three officers who accompanied him? Whatever your feelings on the matter, one thing is clear: for cops, this question represents a red line they’re bound and determined to defend.
Steve Heimoff