Earlier this month, I called the D.C. office of my representative, Roger Williams, and left a voicemail expressing support for two measures related to policing: the ending or curbing of qualified immunity, and the ending or curbing of Program 1033. Because it was a voicemail, it was short, and because I left similar voicemails with the offices of my senators, I don’t remember the exact words I said, but these two policy positions were the core of it.
This Monday, I received the following response via email:
Dear Stuart,
George Floyd should still be alive today. His senseless and disturbing death should shake every American, and my heart goes out to his family and loved ones as our nation mourns his loss. No one is above the law, and those responsible for his murder should be prosecuted to the fullest extent possible.
The four former Minneapolis police officers responsible for George Floyd’s murder have all been charged – this is a step towards justice. Law enforcement officers who have poisoned intentions and exhibit hatred towards their fellow man, have no place within these ranks. Those officers who have made headlines for their egregious actions must be held fully accountable, both before God and in front of a jury. That is why I joined my colleagues by introducing a resolution calling for justice for George Floyd and opposing calls to defund the police.
Law enforcement officers who abuse their position of power do not represent the overwhelming majority of hardworking and moral police officers we see every day. I applaud those who have and will choose a life of service, putting community and country above self so all might live in peace.
Holding those former Minneapolis police officers accountable must be done and I will follow their legal proceeding closely. During these times I pray we look to our neighbors and dedicate ourselves to open and honest dialogue. I pray for healing in the homes and hearts of all who are hurting. Although America has seen dark days before, I pray we see no more. I am confident that by modeling truth, responsibility, and affirmation for our younger generations, our brightest days truly lie ahead.
Sincerely,
Roger Williams
Member of Congress
To be clear, I completely expected a form letter in response. These offices get a lot of calls. What was disappointing about Williams’s office’s response was not that it was a form letter. What was disappointing was that it didn’t address either of the policy positions I called to support.
One of those two measures was, as has been said, the ending or curbing of qualified immunity. Qualified immunity is a doctrine created by the Supreme Court in 1967 as an exception to the Civil Rights Act of 1871, which established that if a public official violates the civil rights of a citizen, the official can be held financially accountable in a civil court. The doctrine was initially described as one shielding officials who had acted in good faith, believing their actions lawful, from lawsuits. In 1982, though, the Supreme Court changed the doctrine, granting immunity to officials who did not act in good faith so long as the citizen and his or her lawyers were unable to show that the civil right violated was “clearly established” in a previous judicial decision. The definition of “clearly established” requires the citizen and his or her lawyers to identify a previous judicial decision involving the same “specific context” and “particular conduct,” and under the current approach by courts, those two phrases are narrowly defined.
How narrowly?
In Thompson v. Copeland, the Ninth Circuit Court of Appeals held that while they had previously established that “pointing a gun to the head of an apparently unarmed suspect during an investigation can be a violation of the Fourth Amendment,” they had only established that in cases where the crime under investigation is at most a misdemeanor. In Thompson v. Copeland, the action was not necessarily clearly established to be unconstitutional because the crime under investigation was a felony. The officer in this case—Copeland, who had pointed a gun at the suspect and threatened to kill him if he moved—was shielded from the civil suit by the court granting qualified immunity based solely upon the notion that “specific context” includes details as trivial to the public official’s actions as the oft-arbitrary legal classification of the crime under investigation.
How widely, though, one might wonder, is qualified immunity used?
The Thompson v. Copeland ruling came in 2018. That same year, in Baxter v. Bracey, the Sixth Circuit dismissed a case in which police were accused of unleashing an attack dog upon a suspect surrendering, unarmed, seated, with his hands up. In 2019, the Eleventh Circuit dismissed Corbitt v. Vickers, in which an officer was accused of shooting a ten-year-old child lying on the ground in the midst of alleged repeated attempts to shoot an unthreatening pet dog. Also in 2019, in Jessop v. City of Fresno, the Ninth Circuit (they’re back) dismissed a case in which officers were accused of personally pocketing $225,000 during a raid. In the Eighth Circuit in 2019, Kelsay v. Ernst was dismissed, granting qualified immunity to an officer accused of body-slamming a five-foot-tall unarmed woman who was posing no threat, an action that knocked the woman unconscious and fractured her collarbone.
The examples don’t end there, of course. These are dozens of similar cases, and those are only the ones that have reached a legal stage in which qualified immunity can be granted—in many similar situations, citizens don’t file suit, due to—as one might guess—qualified immunity.
Officers can still be found guilty of criminal conduct. That’s separate from these civil suits. It’s important, though, for citizens to be able to seek financial restitution for civil rights violations by public officials, and not just for the self-evident reason that their civil rights are violated.
Curtailing qualified immunity wouldn’t only give victims of civil rights violations a path to restitution. It would also create financial imperatives for police officers and cities to become better at, well, not violating the Constitution.
I am not a legal expert, so I’ll steer clear of any debate over whether officers or their employing cities should be held liable in these cases by addressing either scenario. In the first, malpractice insurance would, if legally allowed to do so, create a market in which poor-performing officers would be priced out of service. In the second, liability risks for the cities themselves would force reforms designed to protect the constitutional rights of citizens.
In other words, it’s also important for citizens to be able to seek financial restitution for civil rights violations by public officials because it will prevent those civil rights violations from happening. It isn’t just restitution. It’s prevention.
For a while, it was looking like the current Supreme Court was going to address Qualified Immunity this year, altering the definition to something more reasonable. Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Clarence Thomas—not exactly an ideologically-aligned trio, as far as the Supreme Court goes—have all notably criticized the doctrine. However, earlier this month, the court rejected a stack of qualified immunity appeals, kicking the debate to Congress.
It’s useful here to remember that the job of the Legislative Branch to make laws, and the job of the Judicial Branch to interpret laws. Interpreting laws, though, does not always only include determining if they’re constitutional, or determining what they mean. It has sometimes included filling in gaps within the law, to take a charitable view (an uncharitable one would be altering laws to better suit what the court finds just, thereby “legislating from the bench,” to borrow a phrase). In the case of the creation of qualified immunity, the third thing happened: The Supreme Court filled in a perceived gap in the law. Now, it’s time for Congress to close that gap.
In the weeks since George Floyd’s killing called attention to the necessity of criminal justice reform, qualified immunity has found a place in the legislative debate (this is, according to some, why the Supreme Court opted to not consider the doctrine—they’d rather Congress just make a law addressing the matter directly so they, the court, don’t have to make a somewhat arbitrary distinction). A bill abolishing qualified immunity has been introduced in the House of Representatives with co-sponsors from three political parties (yes, this makes the bill officially tripartisan). A bill reforming qualified immunity was introduced in the Senate earlier this week by a Republican from Indiana (Mike Braun). Certain Republicans, including the current president, have said that changing qualified immunity is not something they’re open to supporting, defending it under the justification that it’s a necessary measure to allow police to do their jobs (leading one to wonder both how much support from police unions these politicians feel is necessary, and how well these politicians think police are doing their jobs if we’re getting dozens of these cases a year). Thankfully, their stances can change. Addressing the doctrine is something supported not just by one party, and not just by one party and moderates, and not just by one party and mavericks. It’s supported by a growing coalition of legislators from a diverse array of political tribes, lending credence to the thought that it’s worth the effort to express public support for reform in this specific area, and to privately contact one’s representative and senators to request their action on the matter as well.
There’s also action that can be taken at the state level: In Colorado, Governor Jared Polis recently signed into law a bill allowing citizens to engage in civil lawsuits against police officers who “violate their constitutional rights under Colorado law” (allowing suits to happen in state court, rather than federal court where the current qualified immunity battles play out). Exploring whether similar legislation is on the table in your state may be worthwhile, if you, like many, find qualified immunity to be an issue in clear need of a legislative remedy.
If you don’t agree, or if you do but want to learn more, or if you’re confused about all this and looking for alternative explanations, here are two more resources: The first is a piece by Amir H. Ali and Emily Clark from the MacArthur Justice Institute. The second is the FAQ section of the Cato Institute’s website devoted to addressing qualified immunity.
Call your congresspeople.
