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Reform Qualified Immunity, Don’t #Defund and Destroy

The brutal killing of George Floyd, now more than a year ago, sparked a widespread movement to reform the criminal justice system throughout the United States. Under the motto of “defund the police,” the nation rose in protest what they see as the violation of constitutional rights with impunity on behalf of the police. Although blown out of proportion by a media interested in sensationalism rather than accurate information, their sentiment is understandable. While only a tiny fraction of the population, namely 16%, are actually in favor of cutting the funding for police departments, the issue has made its way into the halls of local, state, and federal government. The problem, however, lies in the fact that their solution—defunding the police—will not deliver the utopian results that it purportedly would. Violent crime is rising in almost every major city after decades of falling. Homicides have increased by an average of 33%, even increasing more than 50% in Chicago. The government is set up to protect individuals from external threats, and law enforcement is essential to do so. However, the real question lies in how to bring back the public’s trust in the police.

The idea of defunding the police is hardly revolutionary and takes on multiple forms. Broadly, the police are used to deal with too many social problems—drug abuse, mental illness, and domestic disputes—for which they are not well equipped to handle. This generates a mismatch that too often leads to negative consequences. Proponents of this version of “defund the police” argue that a portion of the funds that are currently given to the police ought to be diverted towards social workers, education, and healthcare instead. However, some of the more radical interpretations go far further, arguing that the entire police system needs to be dismantled. Given that the United States is experiencing an enormous crime wave, recognizant of the bad old days from the 1990s, it appears to be hardly the right time to start lowering police budgets. Instead, the question should be, how do we organize the police in such a way that the people regain their faith in law enforcement; how to create an atmosphere of accountability.

During Marbury v. Madison in 1803, Chief Justice John Marshall stated that “The government of the United States has been emphatically themed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” In order to stop rights from becoming nothing more than symbolic commitments, accountability must be the top priority when it comes to social justice reform. This brings us to the root cause of the current climate of distrust: qualified immunity. This doctrine, established by the Supreme Court in the 1960s, protects state and local officials from liability, even when they act unlawfully, so long as their actions do not violate “clearly established law.” This doctrine has created a situation where plaintiffs must not only identify a clear legal rule but a prior case with functionally identical facts. This leads to a climate of near-zero accountability, in which courts frequently rule that government agents violated someone’s rights but that the victim does not have a legal remedy due to the precise misconduct not having occurred in past cases.

Take, for instance, the case of Corbitt v. Vickers, in which the police pursued a criminal suspect into the backyard of Amy Corbitt, who at the time was in the yard with six children. The officers demanded that they all get on the ground, which they did, and the police took the suspect into custody. However, it was at this time that the family dog walked onto the scene. Without provocation or signals of an immediate threat, the deputy sheriff shot at the dog, missing twice. However, his second shot hit Ms. Corbett’s 10-year-old child, who was still lying on the ground. The child suffered severe pain and trauma, but the eleventh circuit granted qualified immunity to the officer on the grounds that no prior case had involved the “unique set of facts.” Or take Baxter v. Bracey, where a police dog was released to attack a suspect after the suspect had surrendered himself by sitting down with his hands in the air. Although there had been a previous case in which a subject was attacked by a police dog while having surrendered, qualified immunity was granted because in this prior case, the suspect had been lying down rather than sitting with his hands up, and this was enough for the court to consider the cases as distinguishable.

While only a small proportion of police officers are involved in fatal encounters—and an even smaller portion unjustifiably so—the widespread prevalence of cellphones has led to the mass sharing of police shootings which in turn decreases public trust to an all-time low. Although it is unfair to hold all police in low regard because of a few rare but highly publicized fatal encounters, the crisis in confidence is exacerbated by the perception that these officers are almost never held accountable. This lack of accountability is also problematic for law enforcement; public perception is vital to their effectiveness. When people believe the police break the law with impunity, it undermines their respect for the officers and increases the chance that legal directives will be refused, leading to more violent altercations.

In order to solve this crisis, there must be a system of robust, predictable accountability as was supposed to be provided with by Section 1983—which provided individuals the possibility to sue government employees for civil rights violations. This way, police officers have true credibility when they say, “yes, there are bad actors, but most of us do our jobs professionally, and those who don’t will be held accountable.” Qualified immunity, in the current situation, prevents the good officers from overcoming the negative perceptions while only protecting those who break the law.

Police officers often have to make split-second decisions under dangerous circumstances. However, even before the doctrine of qualified immunity, the legal standards for determining constitutional violations were highly deferential to on-the-spot decision-making. Under the Fourth Amendment, as long as the officer was acting reasonably at the time, they did not violate the law. Qualified immunity is only raised if the officer acted unreasonably under all circumstances. Additionally, the claim that without qualified immunity, nothing will deter frivolous lawsuits is bogus. This is because the doctrine only works in instances where someone’s rights have been violated but that those rights were not clearly established at the time of their violation. Therefore, it is only applied when the underlying claim has merit, and those cases are by definition not frivolous.

The House of Representatives recently passed the George Floyd Justice in Policing Act by a vote of 220-212, along party lines. While going much further, the legislation does attempt to increase accountability. It both gets rid of qualified immunity and creates a nationwide police misconduct registry. Although some other parts of the bill are dubious in their intentions, getting rid of this doctrine is a win. Qualified immunity, as a judicial invention with no basis in law, has proven to routinely deny justice to the victims of misconduct while also undermining the good members of law enforcement. Hopefully, public faith in our institutions can increase again once it is gone.


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