The Hue And Cry Over Qualified Immunity

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Guest post by Mike Lazarus

Lots of talk lately about Qualified Immunity. Much chest-beating declaring it an abomination that protects bad cops from prosecution. Like many of our public proclamations, we are enjoying a certain loose standard of facts, that — while entertaining — often fails to educate so much as mislead.

First, let us clarify one important distinction that so many people either do not understand, or purposefully obfuscate: Qualified Immunity has nothing to do with criminal prosecution for police misconduct. Zero. Zilch. Nada. The big goose egg. Please re-read that if you think cops cannot be arrested, charged with a crime, or otherwise punished via the criminal justice system for wrong doings. Qualified Immunity does not allow cops to “get away with murder” or other crimes.

Qualified Immunity only attaches to cops (and other public officials) in civil matters. Torts, civil wrongdoings, etcetera. Furthermore, it only comes into play for official duties and official acts. So, the cop who is off-duty does not get qualified immunity protection.

We have eliminated much of what qualified immunity isn’t. So, what is it and what purpose does it serve? Qualified Immunity was put in place to protect public officials from frivolous lawsuits — the fear being that allowing people to sue cops and other public officials for engaging in what latter was determined to be legal behaviors, would have a chilling effect on the performance of their duties.

Does Qualified Immunity work as intended? I don’t know. I’ve never seen a case where a cop considered doing something that might fall into a legal gray zone taking into account the idea that Qualified Immunity might protect them. Most cops aren’t that clever, and many cases that end up in civil courts are the result of split-second decisions where not much forethought is given to matters, except those most immediately at hand. Like perceived life or death situations. Or effecting what appears to be a lawful arrest. It is only in the aftermath that such issues as qualified immunity come into play.

Another point to note. Qualified immunity does not come up as a defense, unless a law suit is brought forward. In other words, Qualified Immunity does not stop someone from filing a lawsuit. It stops a lawsuit from proceeding past the point of summary judgement (where a judge examines the suit and rules that it cannot go forward; this often comes up where there is no dispute of facts, just rule of law) thus saving the respondent the trouble of funding a defense to the suit.

Some people are arguing that ending Qualified Immunity would force cops to get insurance, much like doctors and other professionals. This isn’t a terrible suggestion. It is even possible that some police agencies might even fund this insurance via a large pool, and provide it as a perk of employment. The benefit to this is that it would take cities, counties, and states out of the legal equation in some manner. So rather than settling lawsuits with multi-million-dollar awards, an insurance business, operating for profit, would be forced to defend the suit and would likely be very reluctant to settle on quasi-questionable cases.

Another possible side effect (and perhaps a perk depending on how one looks at things) would be less proactive police work. Proactive police work is often highly encouraged in police agencies and is a large driver of arrests, traffic and parking tickets, and identifiers of criminal behavior. It means cops are driving around, looking for people breaking the law.

Giving cops the idea that they are more exposed to civil suits, and possible financial ruin, would certainly work to counter balance their zeal for finding criminals. It would be very interesting to see what impact this has on crime in general.

One of the potential benefits of removing Qualified Immunity would be to give private citizens a greater stake in community safety. Essentially forcing citizens to confront crime when it gets too close to home for their tastes. What this looks like could be anyone’s guess. Would we have more Trayvon Martin situations? Even now, we have high profile individuals (like Chirlane McCray) imploring citizens to get involved as crime unfolds.

Is it time to return to the days of Hue and Cry? Should we be giving communities the power to police as they see fit? Removing Qualified Immunity might be a solid step in that direction.

Mike Lazarus is a retired police officer and Army veteran. He holds a BA in Social Science and has a JD. Mike has provided expert witness testimony in several trials involving police officer Use of Force cases. Mike is a college professor and also teaches a variety of tactical and firearm courses to both law enforcement and civilian students

Comments

John Gomez says

March 30, 2021 at 1:23 pm

Thank you for the informative post.

Quixotic Mainer says

April 1, 2021 at 7:57 am

I’ve found that when qualified immunity is brought up of late, I can best paraphrase a famous Spanish swordsman when I say;

“You keep using that word, I do not think it means what you think it means,”

Thanks for trying to throw a little light out there on the subject. Most people honestly don’t know what they’re debating.

Steve Stratos says

April 5, 2021 at 10:21 am

Thanks again for bringing some clarity and sanity to the debate!

NAVIGATE

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