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Link eyed between ‘qualified immunity,’ police misconduct

Police cruisers on the street in West Hollywood. (Photo: Kit Leong, via Shutterstock)

As protests mount over police misconduct in California and across the country, attention is turning to a largely obscure policy that has long shielded law enforcement officers — qualified immunity.

At least one member of California’s congressional delegation — a Republican — has joined with a number of House Democrats in seeking to overturn qualified immunity.

Public officials who have violated a citizens constitutional rights are not protected.

The doctrine has deep roots, dating back to the 19th century.

Described as a “shoot first, think later” doctrine by Supreme Court Justice Sonia Sotomayor, the controversial concept stems from language in the U.S. Civil Code approved by Congress in 1871. 

The specific law — Section 1983 — is known by several names: “The Enforcement Act of 1871,” the “Civil Rights Act of 1871” and the “Ku Klux Klan Act.” It was written following the American Civil War with the purpose of dismantling the KKK and other white supremacy groups in the southern states.

Qualified immunity shields public officials from attack and harassment and “‘from undue interference with their duties and potentially disabling threats of liability,'” the U.S. Supreme Court noted in a 1994 case.

Public officials who have violated a citizen’s constitutional rights are not protected. But an “accommodation for reasonable error exists because officials should not always err on the side of caution because they fear being sued,” noted a court decision cited at a May 2004 conference of the League of California Cities.

The doctrine of qualified immunity appears to have a role in successfully defending officers in misconduct cases.

The law broadened President Ulysses S. Grant’s authority, allowing him to deploy federal agents (rather than local militia) to apprehend KKK operatives. In addition, the act allowed those captured to be held without trial, through the suspension of habeas corpus. The latter implication is significant, experts say, when discussing qualified immunity.

Polls show that a majority of Americans want drastic changes to policing nationwide. And as legislation and new policies are debated daily, the doctrine of qualified immunity appears to have a role in successfully defending officers in misconduct cases.

Rep. Tom McClintock, an Elk Grove Republican who for years has been urging changes to the qualified immunity doctrine, has joined Democrats and Libertarian Rep. Justin Amash in backing legislation to eliminate qualified immunity. The House criminal justice reform bill, which the House approved on June 25, would end qualified immunity, but the Senate version does not. The House bill also bans chokeholds, racial profiling and no-knock warrants in drug cases.

“Whatever his motive, the killer of George Floyd had 18 complaints for misconduct, and one of his accomplices had six. Why is such misconduct tolerated by big city police departments?” McClintock asked after Floyd, a black man, died while in Minneapolis police custody. Derek Chauvin, the officer who leaned on Floyd’s neck, was named in 18 prior complaints to the Minneapolis Police Department.

“Is it because politically powerful police unions protect the bad apples among them?” McClintock told the Sacramento Bee on June 9. “Is it because the doctrine of qualified immunity shields corrupt officials from accountability for a wide range of crimes?”

Currently, the two professions primarily protected by legal immunity are police officers and judges.

On June 19, Colorado Gov. Jared Polis, a first-term Democrat, signed legislation to strip away officers’ qualified immunity in civil cases. In California, at least 10 pieces of legislation deal with some version of legal immunity, but none focus specifically on qualified immunity, according to the Legislature’s bill information page.

While originally intended to bolster the 14th Amendment, the Act, however, also granted members of law enforcement — among other public officials — immunity from prosecution under certain circumstances.

In President Grant’s case, he wanted his agents to act freely from legal restraint so that the KKK could be swiftly crushed without punitive action against the agents who were carrying out federal orders.

Section 1983 wasn’t written specifically for police officers, but that’s how it’s been frequently wielded in the courtroom in recent years.

Stewart Katz, a Sacramento-based lawyer who has specialized in police misconduct cases over the past thirty years, spoke about qualified immunity.

When I asked him about its use in protecting police officers, he simply stated, “Yeah, all the time.”

Currently, the two professions primarily protected by legal immunity are police officers and judges.

“It’s found more favor with the courts in the last ten or fifteen years compared to twenty years ago.” — Stewart Katz

Judges are protected through “absolute immunity,” in large part due to the 1967 Supreme Court case Pierson v. Ray, which granted the judge immunity from punishment after unjustly imprisoning a group of priests partaking in the “Freedom Rides.”

Officers, on the other hand, are protected by “qualified immunity.” Both brands of immunity however, trace back to Section 1983.

“It’s found more favor with the courts in the last ten or fifteen years compared to twenty years ago,” Katz said.

So what’s changed? Why — according to a 2020 Reuters report, Katz and many others — has there been an increased usage of this legal doctrine nationwide since the mid-2000s? 

Two cases that occurred during that decade may offer the answer.

In the 2001 Supreme Court case Saucier v. Katz, qualified immunity was decided through a new interpretation of the “two-pronged test”(also known as “mandatory sequencing”). This test was created so that trials would include a specific order of questions against the defendant, such as an officer on trial for excessive force.

According to Katz, the two-pronged test asks, “Firstly, ‘is there a constitutional violation?’ And the second prong is, ‘Was this clearly established at the time of violation?’ ”

In a case of alleged police brutality, for example,  the court would first have to determine if the officer violated someone’s constitutional rights before moving on to the second question, which asks if the rights of the citizen were “clearly established” at the time of the incident.

But the sequential order of the test was eventually dismissed following the 2009 Supreme Court decision in a case known as Pearson v. Callahan.

“The court (in Pearson v. Callahan) said, ‘Well, it doesn’t really matter what order you do it in.’ But by doing that, it really accelerated the start, in my view, of the total increase in qualified immunity cases,” Katz said.

Arguments against “qualified immunity” ironically come from both sides of the political spectrum — although less so from centrists.

By removing the intentional sequencing of “two-pronged test,” qualified immunity became almost impossible for lawyers to overcome in landing a criminal conviction against an officer, according to Katz.

“It makes it very easy to grant qualified immunity because you can always find some thing or some fact that is different,” Katz said.

That’s because the defense will almost always be able to include some fact that is different from a prior court case in which lawyers are trying to prove is legal precedent for their own case. According to Katz, it’s the difference between “two shots fired and ten shots fired,” in separate cases.

Even a difference like this can make it extremely difficult to prove that a legal precedent exists for conviction. When asked if Congress could “do away” with the doctrine outright, he replied “absolutely.”

He noted that arguments against “qualified immunity” ironically come from both sides of the political spectrum — and less so from centrists.

Some pro-law enforcement groups’ issue with the doctrine isn’t necessarily in its application, but from the fact that it was judicially created and not something that flowed from the constitution or the Bill of Rights.

Meanwhile, those who are further left politically in the Democratic Party, such as Representative Ilhan Omar, would like to see the doctrine erased because of its links to continued police brutality.

Omar, alongside Amash and Democrat Ayanna Pressley, hopes to end the doctrine altogether through a co-sponsored bill, an action that others have attempted in Congress.

The Supreme Court, however, recently rejected proposals to discuss qualified immunity.

Would eliminating qualified immunity have any impact on police misconduct?

“I think you’d have more thoughtful training,” Katz said. “I think it’d emphasize (police) to act in an objectively reasonable manner.”


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