Ending ‘Qualified Immunity’ Won’t Make Cops More Accountable: Study

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Even if qualified immunity were eliminated in America, civil rights lawsuits “would often still fail to hold government officials accountable when they exercise power irresponsibly,” according to a Columbia Law Review study.

Ending qualified immunity, the legal doctrine that shields police from lawsuits by setting a high bar for plaintiffs to sue officers for civil rights violations, is among the demands raised by reformers this month in the wake of the police killing of George Floyd. And, it is part of a package of sweeping police reforms proposed by congressional Democrats on Monday.

But, rather than “usher[ing] in a new age of government accountability,” plaintiffs’ and defendants’ litigation success rates would remain roughly the same, with appellate courts granting police immunity now more than ever, wrote the study’s author, Joanna C. Schwartz, a law professor at the UCLA School of Law.

Meanwhile, the Supreme Court has been “downright bullish” in regard to qualified immunity, ruling in favor of the government in every qualified immunity case that came before it since 2005, the study pointed out.

­­­­­Schwartz predicted that ending qualified immunity would only slightly change constitutional rights and protections.

Importantly, government agencies’ indemnification, budgeting and risk management procedures would continue to protect law enforcement officials from the financial consequences of damages awards, she wrote.

Nevertheless, the study offered compelling reasons to abolish this long-standing legal doctrine. Schwartz maintained that it not only limits law enforcement accountability, but it also fails to protect government officials from protracted and meritless litigation.

The study reached its conclusions by reviewing 1,200 federal civil rights cases filed over the course of two years, surveys and in-depth interviews of attorneys who appeared in those cases, police indemnification practices, and circuit and district court decisions on qualified immunity.

Schwartz wrote that her study’s methodology makes it “the most comprehensive examination to date of the role qualified immunity plays in Section 1983 litigation.”

In 1871, Congress passed Section 1983, which allows citizens to sue the government for violations of their civil rights.

Lawmakers, judges, researchers and advocacy groups have long called for the end of qualified immunity. These calls are growing louder in the wake of the recent officer-involved killings of George Floyd, Breonna Taylor, Ahmaud Arbery, and others.

For instance, Senators Edward J. Markey (D-MA), Cory Booker (D-NJ), and Kamala D. Harris (D-CA) have introduced a resolution calling for the elimination of qualified immunity, as did Rep. Justin Amash (L-MI). The lawmakers claim that their respective bills would increase police accountability, which they say is severely lacking in modern-day policing.

Although the study found that the abolition of qualified immunity “would not fundamentally shift dynamics that make it difficult for plaintiffs to redress constitutional violations and deter government wrongdoing,” the study’s other predictions could support these calls for reform.

For example, if qualified immunity were to be repealed, the law would become clearer for citizens, lawyers, and judges alike.

There would be more transparency regarding the misconduct of government officials, and citizens would have greater access to the courts, according to Schwartz.

The average time, cost and complexity that go along with litigating claims would decrease.

Repealing qualified immunity would also ensure that judges focus on what should be the main issue of the case — whether law enforcement officials have violated a plaintiff’s constitutional rights. That’s significant because in today’s Section 1983 litigation, this crucial question often goes ignored.

Additionally, “doomsday scenarios imagined by some commentators — of courthouses flooded with frivolous claims — would not come to pass,” concluded the author.

Along with the previously mentioned lawmakers, Supreme Court justices from across the ideological spectrum believe it is time to review their qualified immunity decisions. Justice Sonia Sotomayor argued that qualified immunity allows police officers to “shoot first, think later” and called the legal doctrine an “absolute shield” for police officers who abuse their authority.

Justice Clarence Thomas, largely considered the most conservative justice, wrote that in “an appropriate case, we should reconsider our qualified immunity jurisprudence.”

Should the justices decide to re-enter the qualified immunity debate, they should know that doing away with the doctrine would not cause substantial harm, as many of its proponents have suggested, argued Schwartz.

Neither would the end of qualified immunity jeopardize policing or “society as a whole,” according to the study.

Editor’s Note: For additional information on qualified immunity and other issues related to police accountability, please see The Crime Report’s resource pages on “Policing” and “Policing Reform.”

See also: “How We Can Police the Police” by Matthew T. Mangino, The Crime Report, June 8, 2020

The full study can be accessed here.

This summary was prepared by TCR News Intern Michael Gelb.

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