Public Interest

Want to Fight Police Misconduct? Reform Qualified Immunity

Protestors seeking to reform law enforcement practices should consider a more fundamental legal solution.

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Recently, police have been killing and otherwise abusing people of color with what seems like increasing frequency. The Black Lives Matter movement is asking them to stop — and pushing for policy changes to help bring about that end. Back in August, the movement launched Campaign Zero, which lays out a thoughtful platform for change at the federal, state, and local levels. One of the legs of this policy platform is “accountability.” This makes sense — real accountability can be a powerful lever to change behavior. But I don’t think the Campaign Zero accountability goes far enough — I think that, in order to bring about real police accountability, we need to reform qualified immunity.

Before getting into what Campaign Zero is proposing and why their proposal ought to include qualified immunity reform, let’s take a step back for some context.

Overall, responses to Black Lives Matter and the Campaign Zero reform platform have varied. Megan McArdle wrote of Campaign Zero that its “suggestions range from ‘worthy of consideration’ to ‘immediate moral imperative.’” But others worry that the very notion of publicly questioning police powers — let alone real police accountability — has already led to gentler policing and, possibly, a corresponding increase in violent crimes. There’s even a name for the notion that paying attention to police misbehavior breeds inactive police and more active criminals — the “Ferguson effect,” even though (in St. Louis, at least) whatever increase there’s been in violent crimes began before Michael Brown was killed by a Ferguson, Missouri police officer. As Ta-Nahesi Coates writes, “If the “Ferguson Effect” is real, how can it be that it started before the Ferguson protests?”

Despite the fact that it doesn’t appear to be supported by evidence, FBI Director James Comey gave some credence to the notion of a “Ferguson effect” in a speech last week at the University of Chicago Law School. He described “a chill wind that has blown through American law enforcement over the last year” and suggested this “chill wind” was “some part of the explanation” for a putative rise in violent crimes. The White House disagreed with Comey. And Ta-Nahesi Coates had some things to say about Comey’s remarks, too, saying they reflected an attitude of non-evidence-based policing — a sort of “creationism, crime-fighting on a hunch.” He linked this attitude to longstanding racist police practices, and he ended with these words: “A theory of government which tells citizens to invest agents of the state with the power to mete out lethal violence, but discourages them from holding those officers accountable is not democracy. It is fascism.”

Coates hits the proverbial nail squarely on its head: again it comes down to accountability. So now let’s take a look at what Campaign Zero is asking for on police accountability.  

This part of the Campaign Zero platform breaks down into four umbrella requests:

  1. Community Oversight — Campaign Zero proposes to increase community oversight of the police by establishing more effective structures for civilian oversight and removing barriers to reporting police misconduct.
  2. Independent Investigation and Prosecution — Campaign Zero wants to make police oversight more independent by lowering the standard of proof for federal civil rights investigations of police, using federal funds to increase investigations of killings by police officers, establishing a permanent Special Prosecutor position in each state, and requiring independent investigations of all deaths and serious injuries caused by police.
  3. Body Cameras and Filming the Police — Campaign Zero supports reforms to make it easier for civilians to obtain video evidence of encounters with police both by requiring police body cameras and by ensuring civilians can record police encounters.
  4. Fair Union and Police Contracts — Campaign Zero wants to remove special procedural protections for police officers accused of misconduct, to make police disciplinary records public, and to bar police officers who have killed or severely injured civilians from going on paid leave.

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I think Megan McArdle is probably right that these proposals (and the others in Campaign Zero’s broader platform) range from “worthy of consideration” to “immediate moral imperative.” But I also think the list is missing something.

As usual, I’ve not buried the lede: that something is qualified immunity reform.

In order to truly hold police accountable for bad acts, civilians must be able to bring, and win, civil rights suits themselves — not rely on the Department of Justice, or special prosecutors, or civilian review boards to hold officers accountable. And in order to both bring and win civil rights suits, civilians need a level playing field in court. Right now, they don’t have one.  

Instead, police officers have recourse to the broad protections of the judicially established doctrine of qualified immunity. Under this doctrine, state actors are protected from suit even if they’ve violated the law by, say, using excessive force, or performing an unwarranted body cavity search — as long as their violation was not one of “clearly established law of which a reasonable officer would be aware.” In other words, if there’s not already a case where a court has held that an officer’s identical or near-identical conduct rose to the level of a constitutional violation, there’s a good chance that even an obviously malfeasant officer will avoid liability — will avoid accountability.

To bring about true accountability and change police behavior, this needs to change. And change should begin with an act of Congress rolling back qualified immunity. Removing the “clearly established” element of qualified immunity would be a good start — after all, shouldn’t it be enough to deviate from a basic standard of care, to engage in conduct that a reasonable officer would know is illegal, without having to show that that conduct’s illegality has already been clearly established in the courts?

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That’s just a start. There are plenty of other reforms that could open up civil rights lawsuits and help ensure police accountability for bad conduct. Two posts (one, two) at Balkinization by City University of New York professor Lynda Dodd provide a good overview. Campaign Zero should consider adding civil rights litigation reform to its platform, our policymakers should consider making civil rights litigation more robust, and, if we want to see justice done, we should push to make it happen.

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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