What will it take?

Hold cops accountable, eliminate qualified immunity

As a recent transplant to New Mexico, I am delighted to see the attention qualified immunity is getting in the Journal. I take a different view, however, than Paul Chavez in his column of Aug. 21 and Joel Jacobsen in his of Aug. 24.

For 50 years I have worked as a civil rights lawyer specializing in police misconduct cases. During that time, qualified immunity has grown like a malignant cancer, eating away at our constitutional rights. In theory the doctrine says that an officer who violates constitutional rights cannot be held accountable in a civil suit unless the rights were “clearly established” and a “reasonable officer” would have known he violated those rights. In practice, judges have interpreted it to mean that unless a court has previously looked at exactly the same facts and held a previous officer liable, an officer can have the case against him dismissed before it goes to trial in front of a jury.

In Cuigini v. City of New York, a woman voluntarily surrendered to the police on a relatively minor charge. The officer used handcuffs to move her from the booking area to a cell. He applied them so tightly that the woman suffered permanent nerve damage. She shuddered and cried out from the pain. The court ruled the handcuffing was objectively unreasonable and violated her constitutional rights. But because her complaint at the time was non-verbal, the court gave the officer qualified immunity and dismissed the case. It reasoned that, although the officer was made aware of the victim’s pain, no previous case had ruled that he could be liable in the absence of an explicit verbal complaint.

Or consider Jessop v. City of Fresno, where the victim alleged that officers stole over $225,000 in cash and rare coins during a search of his home. The court noted the act was “morally wrong,” but protected the officers from suit with qualified immunity and foreclosed the victim’s chance to get his property back, because it had not previously held that stealing property seized under a search warrant was a constitutional violation.

Those are typical recent examples. The average person, never mind a law enforcement officer, knows that when you intentionally hurt a defenseless person so badly that they cry out and suffer nerve damage, that you have committed an assault. And everyone knows that a search warrant gives the police only the right to take your property into evidence, not to steal it. Only the police have a defense in those circumstances. (As) defendants (they) plead qualified immunity in virtually every civil rights case.

The federal civil rights statute says that “every person” who, under color of law, “subjects, or causes to be subjected” a person of a deprivation of rights “shall be liable to the party injured in an action at law.” Qualified immunity is not mentioned and did not exist at common law. The Supreme Court made it up to protect police officers who violate our rights. When I was a young lawyer, the Supreme Court was the court of last resort for civil rights activists. Now it’s the court of last resort for bad cops.

Chavez wrote that taking away qualified immunity would deter people from applying to be police officers, and officers on the job would stop enforcing the law. There is no evidence to support that argument. We had plenty of police officers before the Supreme Court developed the doctrine of qualified immunity, and they did their jobs. Moreover, it is intolerably cynical to claim that public officials will ignore their oath of office unless they receive special protection from their own wrongdoing that no one else is afforded.

We must stop the wave of police murders of Black people that has swept our country, and we must protect all our citizens from police violence. Accountability is essential. We must eliminate qualified immunity.