I spent more than a decade suing poiice officers in federal courts under the tutelage of one of the nation’s best civil rights lawyers, John Williams of New Haven. I like to joke that I educated my children on the proceeds of those suits. Federal judges weren’t happy with all those lawsuits. They struck back.
One day a friendly federal judge called with a warning: “Norm, you guys better watch out. The courts are going to crack down on these cases. Be ready.”
I wasn’t sure what that meant, but it didn’t sound like an idle threat. We added two lawyers to our staff immediately and prepared to keep pressing. Some months I’d try three short cases in the federal courts.
“We’re ready,” I told the judge a short time after the warning. “Bring it on.”
Of course, the courts did no such thing. What the judges did do, however, was change the rules of the game. A new legal doctrine emerged, a doctrine now much in the news in the wake of the George Floyd shooting in Minnesota – qualified immunity. This judicially created doctrine was used to prevent all but the most egregious cases from getting to a jury trial.
Immunities are the functional equivalent of a Get of Jail card. Immunities suspend the rule of law as to the person possessing the immunity. They can act with impunity. Think of life as a board game, with the rule of law defining the permissible moves. An immunity takes a piece off the board; you can’t touch it.
Absolute immunities are just that: They are impenetrable. Thus, you cannot sue a legislator for defamation for the remarks she makes about you in a legislative chamber. We justify this immunity by saying it fosters robust debate and is therefore valuable.
Qualified immunities are penetrable. They are only enjoyed in certain circumstances. As applied to police officers, judges decide whether a defendant should be granted immunity.
You won’t find qualified immunity anywhere in the federal constitution. Judges made it up out of whole cloth. Yet the doctrine now has spawned thousands of cases. Judges go out of their ways to keep juries from holding cops accountable.
The test for qualified immunity is difficult to explain. It comes down to this: A police officer will be granted immunity from suit unless her conduct violates clearly established law. An officer’s conduct is evaluated by a judge from the forgiving standard that holds officers are entitled to the benefit of the doubt in close cases. What justification? We want them on the street, assuring our safety, and not in the witness box, fighting for their reputations.
There is blood on the hands of the federal judiciary. Just because police officers, as agents of the state, enjoy a monopoly on the legitimate use of force does not mean that juries, the conscience of the community, should be kept from evaluating whether a particular use of force was justified. The judiciary’s decision to infantilize the public is scandalous.
So will repeal of qualified immunity change police accountability?
Not that much, really, and it is important not to lose sight of why that is.
As agents of the state, police officers are immune from suit under a different immunity – sovereign immunity. Officers can only be sued by resort to a legal fiction. When they are sued for violating the law, they are sued in their “individual capacities.” That means that they are being sued not as an arm of the state, but as private individuals who abused the cloak of authority they wear when they function under color of law as state actors.
What’s the difference?
Suing a police officer in his individual capacity means you are suing him for money damages that he will have to pay out of his own pocket. Good luck collecting much of a judgment from most officers.
Many states and municipalities enter into what are known as indemnification agreements with their employees, including cops. The government pays for their damages when they are sued for their official misconduct. Let me be blunt about what this means: The government acts as an insurer providing coverage for their employees when those employees violate your rights.
Of course, the government can refuse to indemnify if the conduct is particularly egregious. That’s why cities are quick to fire cops in high-profile cases. They want to wash their hands of liability and leave plaintiffs with nowhere to go.
Outrageous? You bet it is. But without such agreements who would serve as a cop?
The death of George Floyd looks unjustified from where I sit as a man who has sued, and defended, scores, if not hundreds, of cops. So the officers involved in his apprehension have been fired. They most likely won’t be granted qualified immunity, and they will be sued. But they are likely judgment proof – without assets to cover a judgment -- so the suits are without economic value.
It’s a win, win, win game for government. Train police in use of force. If someone is injured, claim qualified immunity. If that fails, run the risk of trial. If you lose the trial, tell the cop you won’t indemnify. If the case is particularly bad, then fire the officer immediately and signal that a civil suit is pointless.
The law is set up to help cities avoid accountability. That’s why we have so much police violence. Government has no incentive to police itself more effectively.
Do you want to change that?
Then solve the entire problem. Impose strict liability on the government for any injury an officer causes that is in violation of the law – no qualified immunity. We do as much for automobile makers when they put a dangerous car on the road. Don’t let municipalities avoid either trial or the payment of damages when something goes wrong.
Police officers win the overwhelming majority of trials. That’s because their use of force is almost always justified. The streets are dangerous; the world is filled with knuckleheads. There is no epidemic of police violence. What there is are opportunists making the most of isolated cases.
We can do a better job of culling the bad apples in police departments. Make the cities responsible for the acts and omissions of the men and women they put on the street. Let juries decide when officers cross a line distinguishing justified from excessive force.
As it stands, the law spawns a sense of illegitimacy. Police officers act with impunity because they enjoy immunity. When immunity fails, their employer pays their damages. When truly bad cases arise, cities cut loose the officer, avoiding consequences for horrible events.
We can change the law. We should change the law. Don’t expect judges to do this work. The federal judiciary is the party that brought us this whole sorry mess.