- - Wednesday, July 22, 2020

As the country reels from the police killings of George Floyd and others, legislators have proposed several overdue reforms to policing. But one proposal — to eliminate “qualified immunity” — is terribly misguided, and will result in honest, well-intentioned cops being successfully sued for conduct that even many judges would consider lawful.

This will leave police officers slow to act when the law is unclear. The risk of harm from “under-policing” falls, ironically, on those who live in the most crime-plagued sections of our cities — mostly people of color without the financial resources to move elsewhere.

Qualified immunity is a legal doctrine that shields government officials from lawsuits unless they have violated “clearly established” law. For police officers, the governing law is usually the U.S. Constitution’s Fourth Amendment, which prohibits “unreasonable searches and seizures.” The amendment, however, doesn’t define “unreasonable.”

The Framers of the Constitution left the details to the courts, and so, over the years, the U.S. Supreme Court has decided when the police can conduct stops, make arrests, perform searches and so on. The result is a complicated body of case law, consisting of thousands of written court decisions, which prosecutors and defense attorneys cite in arguing whether the police acted illegally. 

Judges resolve these disputes, and their decisions are often appealed to panels of higher-level judges who frequently cannot agree on whether the police violated the Constitution. A legal search engine query shows that in the last year alone, hundreds of state and federal appellate courts have been divided on whether the police acted lawfully. Even the U.S. Supreme Court is sometimes split down the middle, with five justices holding that the police acted illegally and four believing the police did not.



It was in this context that the Supreme Court decided, decades ago, that if even “judges … disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.”

While a police officer’s actions might later be deemed unconstitutional, and therefore “unreasonable” in the language of the Fourth Amendment, that hardly means the officer’s legal judgment was indefensible. Indeed, even an officer who follows Supreme Court guidance explicitly could be found “unreasonable” and held liable, absent qualified immunity, if the Supreme Court were to overrule one of its prior decisions. It is therefore simply wrong to argue, as have many academics, that qualified immunity is “unnecessary” because the Fourth Amendment analysis is couched in terms of reasonableness.

Rather, giving law enforcement officers a cushion in close legal cases allows them to make split-second judgments without getting hung up on whether they will be sued later. Consider a common example. Someone gets robbed at gunpoint, calls 911, and describes the robber. Officers nearby approach a man matching the description, who then flees. Can the officers stop and question him? Maybe so, maybe not. If the law doesn’t give a clear answer ahead of time, what is the officer to do? 

In deciding to give the police a little breathing room in those situations, the Supreme Court has said that “a policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest …, and being mulcted in damages if he does.”

Strip qualified immunity from officers and their judgment calls in all but the clearest cases will be the same: Don’t act, and let the suspect go. That may sound good to those who believe police officers push the line too often, but it will result in far less effective policing, and therefore more crime and more harm to those who live in the communities that reformers are aiming to support.

Critics of qualified immunity argue that eliminating the doctrine won’t chill officers’ conduct, because the officers’ employers typically indemnify them, covering any amount that is owed in a civil suit. But there’s no telling whether such policies will continue when the litigation floodgates are opened. And even if cities agree to keep footing the bill, they will surely direct officers to adjust their behavior and avoid close legal calls that could trigger big payouts. The end result will be the same: unless the law is crystal clear, officers will err on the side of doing nothing.

Critics further argue that the courts dismiss many worthy cases because they are too slow to find that the law was “clearly established.” They cite lawsuits alleging conduct that any fair-minded officer would know was wrong, but that were dismissed because prior, highly similar conduct hadn’t been found unconstitutional by the court. As powerful as these examples are, they at most support improving qualified immunity to ensure that courts don’t require factually identical cases before deeming the law “clearly established.”

That, however, is not what qualified immunity’s opponents propose. Senate Democrats, for example, have pushed to eliminate the protection altogether, and they have not stopped there. Before qualified immunity was created, officers were at least protected if they acted in “good faith.” The Democrats’ bill would do away with that protection as well, leaving officers liable even in cases involving the very closest legal questions.  

If we expect officers to protect the communities they serve, we must assure them that if they act in good faith and do not clearly violate the law, they will be protected from lawsuits. Now is the time for much-needed police reform, but abolishing qualified immunity is a dangerous idea that will do more harm than good. 

• Jason Johnson is president of the Alexandria, Va.-based Law Enforcement Legal Defense Fund, an organization dedicated to educating the public about the many risks and threats to law enforcement personnel. He served as deputy commissioner of the Baltimore Police Department from 2016 to 2018.

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