July 16, 2020


Qualified Immunity and Police Accountability

By: Reggie Wallace

Last month, AF hosted the second installment of a national series on criminal justice reform, this time focusing on the legal doctrine of qualified immunity.

Section 1983 of Federal Civil Rights Laws states, “Any state actor shall be liable to the person injured for the deprivation of any right.” This law was passed in 1871 and permitted civilians to sue federal employees for either injury or a deprivation of any right on their behalf. It was extremely important in preventing federal law enforcement from abusing power without any accountability.

In 1982, the US Supreme Court created qualified immunity. This allowed government officials to be immune from civil suits unless the plaintiff shows that the official violated clearly established constitutional or statutory rights. 

Police officers are given a great deal of power compared to civilians. We would assume that we would hold them to a very high level of accountability, yet they are not.

 According to Clark Nealy, Vice President of Criminal Justice at the Cato Institute, there are currently only 3 ways to hold a police officer accountable:

1. Criminal Prosecution. However, this is not simple. Not all police conduct is a criminal offense, and many prosecutors refuse to take up a case against a police officer due to a conflict of interest. “They work with police, they socialize with police, they depend on police to bring them cases, and they depend on police to testify in those cases,” Nealy remarked. To incentivize action, there must be a great deal of public outcry regarding the case. That way, the prosecutor would appear negligent if they did not pursue the case and would essentially have no choice in the end.

2. Internal Accountability Mechanisms. This is the idea of “police policing themselves” through mechanisms like Internal Affairs. The problem is similar in that there is a conflict of interest. You would have to persuade other officers to go after their fellow officers. Relying on government officials to check other officials creates this conflict.

3. Civil Lawsuits. In these cases, the plaintiff can bring forward civil charges for injuries and violations of their rights.

Qualified immunity effectively modified the Section 1983 doctrine for federal actors by adding the phrase “clearly established,” creating: “Any state actor shall be liable to the person injured for the deprivation of any clearly established right.” It is entirely vague. What has resulted from this language is the intense use of judicial precedent, meaning that in any case where police are liable for any injury or deprivation of a right, the only way to consider that right “clearly established” is for a previous case in the same jurisdiction to have occurred in the past where a judge declared that right to be a right. This essentially leads to legitimate cases being dismissed, not because someone’s rights were not violated, but because no precedent exists. These reasons and causes have led to a strong public initiative to repeal qualified immunity throughout much of the nation.

The popular rebuttal against repealing qualified immunity is that doing so would riddle police with lawsuits for doing any single thing, thus reducing their effectiveness. However, it should be kept in mind that the courts would make quick work of any petty lawsuits. Police officers would not suddenly be subject to excessive liability; instead, it means that a jury will be able to decide if a police officer acted reasonably or not.  Police should not be allowed to circumvent common-sense laws just because they wear a badge.

For more on the subject, watch the full discussion here, and see Part 1 of the series.