In defense of some immunity
Qualified system a reasonable, limited protection for police officers, other public employees
“In Ius Voco Spurius”
— Latin for “sue the bastards”
Making it easier to sue individual police officers by getting rid of what is known as qualified immunity has become a rallying cry for protesters, progressives and plaintiffs’ lawyers in the aftermath of the killing of George Floyd by a Minneapolis police officer in May.
They argue that being able to sue individual police officers across the nation personally in any civil rights case where they believe cops crossed the line is essential to reform, and the time has come to abolish the qualified immunity doctrine established by the U.S. Supreme Court as a defense for public employees.
In New Mexico, the Legislature has established a commission to consider doing away with qualified immunity as part of writing a state Civil Rights Act.
But doing so would be a mistake, no matter how appealing it might sound to progressive Democrats who hold the political upper hand in the Legislature.
First, qualified immunity doesn’t apply only to police. The protection covers teachers, social workers, prosecutors, corrections officers and others. Lawmakers, meanwhile, have lawsuit immunity for actions taken as an elected official. Judges have something approaching absolute immunity for their actions — no matter how “wrong” they might be based on the context of evidence before them or the impact of their decision. The news media has a version of immunity in the New York Times vs. Sullivan decision that requires a public figure libel plaintiff to show actual malice or reckless disregard of the facts before the case can advance to trial.
Assuming we want to single out police officers, could legislators thread the needle and target only cops while leaving qualified immunity protections for others? Perhaps. There are serious constitutional questions there. But assuming those can be overcome, do we really want a simple negligence standard to apply to the split-second decisions officers have to make in potentially dangerous situations? Do we really want to take a rookie Albuquerque Police Department officer working graveyard in high-crime Albuquerque, making maybe $60,000 a year, and put his or her house on the line for doing something in response to a 911 call that in 20-20 hindsight might have been done better?
And if we do that, would anybody in their right mind sign up to be a police officer?
“Police officers are highly regulated already,” says Bob Martinez, president of the state Fraternal Order of Police. “If you remove qualified immunity you are taking away one of the few protections they have. You may have people thinking twice before joining the profession.”
Second, qualified immunity is far from an absolute
defense. As reported by Journal investigative reporter Mike Gallagher, a Reuters study of cases from 2015 to 2019 in federal court found that qualified immunity decisions favored police only 57% of the time. There is no chance it could be successfully raised as a defense in the Floyd case — where the officers were fired and face criminal prosecution. The taxpayers there will no doubt be on the hook for a major settlement or judgment — appropriately so.
Some form of lawsuit immunity is far from unique. The state itself has sovereign immunity and dictates the terms under which it can be sued — resulting in what is known as the Tort Claims Act that sets out procedures and limits damages in many cases.
Qualified immunity evolves constantly through court decisions, but plaintiffs attorneys argue that as interpreted the bar is too high, essentially requiring them to find a previous case with the exact set of facts.
Further, when the government defendant raises qualified immunity as a defense, it often puts the case on hold while the question is decided. And if granted, it can knock out some or all of the civil rights claims in federal court — where there are no caps on damages and attorney fee provisions are more favorable.
But it doesn’t necessarily kill the case. As reported by Gallagher, Bernalillo County recently settled a Sheriff’s Office shooting case for $1.9 million even though the federal judge in the case concluded that qualified immunity applied to the deputy. The judge also concluded a jury could decide other questions in the case.
So while individual officers could be targeted more often if qualified immunity were eliminated, the net result is that taxpayers will have to dig deeper because at the end of the day they have deeper pockets.
Police officers — and other public employees — must be accountable for their actions. The same holds true for their employers, i.e., the taxpayers. But the notion that eliminating qualified immunity is essential to reform is misguided. There are better ways to achieve constitutional policing than placing officers in the position where they are afraid to get out of the patrol car for fear of being sued. More civilian oversight, eliminating certain kinds of restraints and requiring fellow officers to report improper use of force are just a few examples.
Efforts to eliminate qualified immunity aren’t as radical as cries to “defund the police.” But in some ways they come from the same place and would be just as counterproductive. The state needs to tread carefully here, and the public should not hesitate to weigh in on this as politicians take up the issue.