8 myths on police qualified immunity
The legal doctrine of qualified immunity contributes to the erosion of public confidence in policing and makes us all less safe.
As it stands, if unlawful or unconstitutional action by a government official has no “clearly established” precedent, there is no grounds for a lawsuit – the official is protected by qualified immunity. Because two cases are seldom exactly the same, this threshold becomes nearly impossible to meet, and civil cases against offending parties are dismissed as a result.
If we are to have worthwhile police reform, we must end qualified immunity. Let’s explore myths and facts:
Myth 1 – Without qualified immunity, police departments won’t be able to recruit and retain personnel.
Fact 1 –Recruitment and retention have suffered for a variety of reasons, but the issues driving that trend have always existed. They include noncompetitive pay and the danger of the job, mixed with newer struggles like public perception of the police.
In fact, ending qualified immunity would increase public confidence in policing as an institution and improve community relations. Data from Colorado, which recently passed qualified immunity reform, indicates that it did not experience a mass exodus of officers in the wake of the new law. Instead, it experienced its fewest unscheduled departures in three years.
Myth 2 – Officers will be distracted by the threat of a lawsuit and will not be able to keep people safe.
Fact 2 – Officers have little reason to fear that they will be personally sued, let alone successfully. State-led efforts to reform qualified immunity often offer personal liability protections for officers. Colorado, for example, caps personal liability at 5% of the damages, up to $25,000. Law enforcement officers who break the rules often are not the ones footing the bill for lawsuits; it’s almost always the cities they work for.
While it is possible to hold an officer financially responsible, such an outcome is rare because cities usually indemnify, or offer civil or legal protections to, law enforcement for on-thejob acts.
Myth 3 – Police are just following their training.
Fact 3 – Law enforcement is allowed to use only the amount of force necessary to subdue suspects, which is how they are supposed to be trained.
Myth 4 – Frivolous lawsuits can ruin the lives of cops.
Fact 4 – Officers have always had ample protection from frivolous lawsuits, in the form of indemnification. In fact, municipalities usually pay attorneys’ fees. In 2014, a New York University study found that departments, not individual officers, were held liable in 99.8% of claims. Ending qualified immunity will not change this practice.
Myth 5 – Police departments are already firing officers for misconduct.
Fact 5 – In 2017, a Washington Post investigation found that at least 1,881 officers were fired in the preceding decade, but more than 450 were reinstated after union contract–mandated appeals. And last year, The New York Times found that arbitrators reinstated fired officers in about half of the cases in Minnesota, one of the few states that make decisions readily accessible.
Myth 6 – Ending qualified immunity makes it possible for officers to be labeled as criminals for doing their job.
Fact 6 – Qualified immunity involves civil liability only – financial compensation in a lawsuit – not criminal liability. The court system would still decide criminality in a separate proceeding.
Myth 7 – Ending police qualified immunity will cause municipalities to go bankrupt.
Fact 7– Municipalities are protected from substantial financial damage. Most small and midsize municipalities already carry liability insurance that covers police brutality and related lawsuits. That is because their budgets are smaller than big-city budgets, which are big enough to safely absorb the cost of litigation. New Mexico’s recent law banning qualified immunity, for example, places a $2 million cap on municipality liability.
Myth 8 – Judges and juries don’t understand the types of split-second decisions officers make on the job.
Fact 8 – Judges and juries already tend to defer to officers.
Because qualified immunity involves an earlier decision by a judge on whether an officer’s actions were reasonable, split-second decisions will be evaluated based on their merits. Juries get to hear claims only after a judge has affirmed that an officer will not get immunity, meaning jurors are already instructed that an action was unreasonable or unlawful at the onset of a case.
Retired Lt. Diane Goldstein worked for the Redondo Beach Police Department in California for 21 years. She is the executive director of the Law Enforcement Action Partnership, a nonprofit group of officers who want to transform policing by advocating for drug policy and criminal justice reforms.