Why are bad cops so hard to bring to justice? Three questions.

Jacquelyn Martin/AP
The killing of George Floyd by police has stirred protests, like this one in Washington June 23, 2020, where a woman confronts a police line. Though actually bringing bad cops to justice is difficult thanks to the "qualified immunity" doctrine.

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Police officers patrolling the United States carry a legal shield intended to protect them as they perform a dangerous job in a heavily armed country. The “qualified immunity” doctrine is meant to allow government officials to do their job without fear of frivolous lawsuits. According to U.S. courts, it gives immunity to “all but the plainly incompetent or those who knowingly violate the law.”

But to many critics of the justice system, the doctrine has tipped the balance of power too far. They say it invites abuse by allowing officers to violate the law to enforce the law.

Why We Wrote This

The doctrine of “qualified immunity” is meant to allow government officials to do their jobs free from lawsuits. But many say it has become a major obstacle to holding police accountable for excessive force.

About 1,000 Americans are killed by police officers each year. Many shootings result from officers being in legitimate fear of their lives, but critics point out that only 1% of such deaths result in an officer being charged with a crime. And while civilians can sue, a declining number of those cases are successful as the qualified immunity doctrine has grown stronger.

Those developments suggest a “risk that too strong a qualified immunity doctrine could lead some police officers to believe they are above the law,” attorney Paul Hughes told the National Law Journal.

Police officers patrolling the U.S. carry a legal shield intended to protect them as they perform a dangerous job in a heavily-armed country.

The “qualified immunity” doctrine is meant to allow government officials to do their job without fear of frivolous lawsuits. The doctrine, according to U.S. courts, gives immunity to “all but the plainly incompetent or those who knowingly violate the law.”

But to many critics of the justice system, the doctrine has tipped the balance of power too far. They say it invites abuse by allowing officers to violate the law to enforce the law.

Why We Wrote This

The doctrine of “qualified immunity” is meant to allow government officials to do their jobs free from lawsuits. But many say it has become a major obstacle to holding police accountable for excessive force.

What is qualified immunity?

The Civil Rights Act of 1871 explicitly states that officials can be held liable for their actions in office.

In 1967, the Supreme Court introduced a doctrine where “good faith” efforts by police could not be punished, even when excessive force leads to death.

There are two tests a civil lawsuit has to meet to supersede qualified immunity: Did the officer violate the Fourth Amendment? And did the officer knowingly violate “clearly established law”?

Although the doctrine is described as “good faith” immunity, “it now has nothing to do with an officer’s subjective good faith,” says Joanna Schwartz, a professor at the UCLA School of Law, and co-author of “Civil Procedure,” a foundational textbook for first-year law students. That’s in part, she says, because courts require immunity be granted unless there’s a prior case in which virtually identical conduct was held unconstitutional by a federal court.

The Supreme Court also allowed courts to rule in favor of immunity even without ruling on the constitutionality of the claim. “Ending qualified immunity is not a silver bullet, but it is among the most important first steps that the Supreme Court or Congress can take to improve police accountability,” says Professor Schwartz in an email.

How does it work today?

In some ways, qualified immunity acknowledged the difficulties of policing in America, in which police are expected to solve a host of social problems, such as mental illness, for which they may or may not have training.

But the doctrine has run headlong into shifts in policing. The increasing use of military gear by domestic policing agencies has reinforced an “us versus them” mindset. About 1,000 Americans are killed by police officers each year.

Many shootings result from officers being in legitimate fear of their lives, but critics point out that only 1% of such deaths result in an officer being charged with a crime. And while civilians can sue, a declining number of those cases are successful as the qualified immunity doctrine has grown stronger.

Between 2015 and 2017, courts favored police in 57% of immunity cases, up from 44% a decade earlier, according to a Reuters investigation.

Those developments suggest a “risk that too strong a qualified immunity doctrine could lead some police officers to believe they are above the law, hopefully not too many,” attorney Paul Hughes told the National Law Journal earlier this month.

In a 2018 dissent, Supreme Court Justice Sonia Sotomayor wrote that such immunity “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

What is happening now?

Many Americans, including President Donald Trump, have called for more law and order as police and protesters have clashed in the wake of George Floyd’s death in Minneapolis.

But polls show Americans shifting dramatically in favor of reforms to protect constitutional rights of citizens, especially Black ones. A June Associated Press-NORC poll found that 29% think the criminal justice system needs “a complete overhaul,” and 40% say it needs “major changes.” Just 5% of respondents said no changes were needed.

Over 250 reform bills have been introduced in states across the U.S., at least some addressing the imbalances of qualified immunity. This month, Colorado eliminated the doctrine for state and local officials, becoming the first state to do so.

Democrats in Congress are demanding that qualified immunity be modified under a new police reform bill. The White House has called that a “nonstarter.”

Some police proponents say the push to change qualified immunity has little to do with the deaths of Mr. Floyd and Rayshard Brooks in Atlanta, given that criminal investigations were opened into those cases. Those now looking at "qualified immunity are kind of cynically taking advantage of a horrific situation to change the law in a different area that ... does not apply at all," Bill Johnson, executive director of the National Association of Police Associations, told The New York Times.

This month, the Supreme Court declined to take several qualified immunity cases, even as Justice Clarence Thomas registered “strong doubts” about the doctrine’s constitutionality.

Last week, the Fourth Circuit Court of Appeals in Richmond, Virginia, overturned a qualified immunity ruling in the case of a homeless man who was shot and killed by police after a struggle where the man, Wayne Jones, was rendered unconscious by a chokehold and could no longer comply with officers’ commands.

Judges recognized the split-second nature of police work, but noted that to side with the officers in the case “would signal absolute immunity for fear-based use of deadly force, which we cannot accept.”

Citing the Floyd case, the federal court concluded: “This has to stop.”

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