Last month, 54 police officers, judges, prosecutors, and federal agents across the country sent a letter to Congress urging legislators to end the practice of granting qualified immunity to law enforcement agents accused of misconduct.
“We believe it is crucial to end a legal doctrine that has contributed to the erosion of public trust in the justice system and made all of us less safe,” the letter said.
As a 21-year police veteran, I couldn’t agree more.
Qualified immunity prevents legitimate civil lawsuits from being heard when an officer violates constitutional rights. It damages police-community relations and public safety.
And, to answer one of the primary fears of many police officers and police unions, it is not needed to protect law enforcement from unwarranted litigation in civil court.
Under the current system, if the action has no clear legal precedent, there are no grounds for a lawsuit. But because circumstances for cases differ, this “clear legal precedent” is extremely difficult to provide.
Even in the best case scenario, the first officers sued under a particular set of circumstances will win ―no matter how egregious the violation.
For example, in the 2019 case of Jessop v City of Fresno, police officers were alleged to have stolen more than $200,000 while serving a warrant. The Ninth Circuit dismissed the case not because it found the police hadn’t stolen the money, but because there was no precedent clearly stating that theft by officers was a violation of the Fourth Amendment.
In addition to being constitutionally dubious, this makes no ethical or logical sense.
If this case were an isolated incident, the overall impact might be minimal, but it isn’t. One study examining 1,460 police misconduct lawsuits between 2009 and 2012 found that 72 percent were tossed on qualified immunity grounds before being heard.
Communities fear and distrust police not because we make mistakes, but because we are rarely held legally accountable for them.
At the same time, officers feel the weight of heightened scrutiny on top of regular policework.
This is a recipe for disaster. Collaborative public safety efforts — like all strong relationships — are not possible without trust and communication.
Without strong relationships, police are alone in our efforts to solve serious crimes.
Meanwhile, a majority of violent crime goes unreported, even by survivors. We cannot solve crimes we don’t know about, and we cannot learn new information about a case from communities when they refuse to interact with us.
‘Corrosive’ Double Standards
A corrosive sentiment emerges any time one group of people is held to different standards. This becomes especially dangerous when the group offered immunity is a group that also holds power in our society. To maintain a safe and democratic society, civilians must have the ability to hold public officials―including police―accountable.
My law enforcement colleagues still in uniform have no need to fear losing qualified immunity. Without it, we are still protected by the Fourth Amendment, which protects people against “unreasonable searches and seizures.”
If our search or seizure was reasonable given the circumstances, we are protected. If we have done nothing wrong, a lawsuit has no merit.
Police can also rest easy knowing that we are extremely unlikely to be bankrupted by a payout if the court finds our actions were unreasonable or unconstitutional. Research shows that 99.98 percent of damages in police misconduct lawsuits are paid by city governments. Officers would not be bankrupted by settlements, judgments or personal liability insurance.
Two-thirds of Americans say that civilians should have the power to sue police officers in order to hold them accountable for misconduct and excessive use of force, even if that makes policing more difficult.
I am confident, however, that ending qualified immunity would actually make police work easier by strengthening our relationships in communities who see us as the enemy.
The protests last summer after the killings of George Floyd, Breonna Taylor, and others have brought us to a breaking point.
The way to quell the unrest and move forward as a safer, more cooperative society is not to double down and stand behind the “blue wall of silence.”
We need to take specific actions right now that will bring us closer to that goal.
Ending qualified immunity will not fix everything that must be addressed in policing. But it is a necessary step that will show communities we are listening to their concerns.
Lt. Diane Goldstein (Ret.) is a 21-year police veteran and executive director of the Law Enforcement Action Partnership (LEAP), a nonprofit group of police, judges and other law enforcement professionals who support policies that improve public safety and police-community relations.