Portside

Some reps in Congress assert that dismantling qualified immunity (“QI”)—a police officer’s so-called good faith defense to a civil rights lawsuit—is a “non-starter” in negotiations to pass the George Floyd Civil Rights Act. In reality, meaningful police accountability is a non-starter without discarding QI.

QI is a regressive framework which has turned federal civil rights lawsuits into sheer games of chance with bad odds. Under QI, the Supreme Court instructs judges to apply a two-pronged analysis, in a specific order: first to examine whether the right sought to be vindicated was clearly-established at the time, and second to examine whether the officer reasonably could have believed his/her conduct was lawful. But if the judge finds that the right was not clearly-established, the case is over; the judge dismisses it without ever examining whether the officer acted unreasonably. As a result, dismissed cases do not add to the body of clearly-established rights so as to protect even future victims of police abuse. Rather, police can repeat the same rights violations ad infinitum without civil rights law ever advancing.

QI is standardless. There is no reliable test for deciding the “level of particularity” with which a judge should examine the facts of a case in order to determine whether they occurred in a prior case amounting to a “clearly-established” right. As a result, QI invites judges to substitute their subjective attitudes for a jury’s determination whether rights have been violated, producing wildly contradictory results. A judge inclined to dismiss a case can examine its facts granularly and rule that there is no prior case on point; ergo, the right is not clearly-established. A judge inclined to help a case along can look at the facts more generally, and rule that the right is clearly-established. In practice, crowded courts grant qualified immunity in the vast majority of cases simply because they can, and because the judiciary slants pro-law enforcement.

 QI is also irrational. The legal test for determining whether a police officer had probable cause to make an arrest is whether that officer reasonably believed the facts and circumstances pointed to a crime having been committed by the person arrested. But under QI, even if probable cause was lacking, the arresting officer is immune if s/he reasonably could have believed s/he had probable cause. The courts have referred to this nonsensically as “arguable probable cause.” By the transitive property, “arguable probable cause” means that even if no reasonable officer could have believed s/he had probable cause to make an arrest, the same officer nevertheless reasonably could have believed s/he did have probable cause. Anyone attempting to defend QI should have to explain this “logic.” The courts cannot.

QI produces absurd results. The more outrageous or outlandish the police misconduct, the less likely there is to be a prior case on point outlawing it. Therefore, the more outlandish the police misconduct, the more likely the officer is to escape liability.

For the foregoing reasons, QI functions to exonerate police at all costs. In so doing, it creates a chasm between the public’s expectation of justice, and court reality, i.e. the routine dismissal of meritorious cases. This builds up explosive pain in the populace. Since cases dismissed under QI do not reach a jury, the public rarely gets a say in what constitutes reasonable police conduct—except in the media and in the streets.

On the surface, it may look like civil rights violations regularly yield multi-million dollar settlements. But this is a media distortion. Most high profile police misconduct cases would be dismissed under QI in the shadow of public scrutiny. This gulf between TV and verité warps the public discourse on police reform, engendering complacency on the part of the privileged, while the disadvantaged suffer disproportionately.

A principal purpose of the Federal Civil Rights Act of 1964 was to give Black victims of police abuse access to justice in federal fora outside of the chummy white racist county court bastions of the time. But QI has all but obliterated that avenue. As a result, historic victims of police abuse are regularly re-victimized in court.

Because civil rights litigation is a lottery, civil rights lawyers, a major bulwark of police accountability—who typically front the costs of litigation for our indigent clients and rely on attorney’s fees awards if/when we win—are quitting the practice in droves. We simply cannot afford to risk the stakes. I have had to “diversify” my practice over the years by taking ever fewer civil rights cases as a share of my caseload.

Contrary to what QI’s defenders claim, it in no way helps police ‘do their jobs.’ It simply helps them get away with violating people’s civil rights. Consider:

The stated purpose of QI is to protect the public at large by preventing officers from having to second-guess their instincts in dangerous and fluid situations—not to shield individual officers. Toward this end, QI was conceived not just as an immunity from liability, but as an immunity from suit, tasking courts with weeding out frivolous claims early in the litigation. In practice, however, most cases are not dismissed under QI until years into the case, at the summary judgment stage, after discovery (the collection and exchange of evidence) has been completed.

Then, if the plaintiff appeals, the federal appeals court reviews the lower (district) court’s decision “de novo,” meaning anew, viewing the claims and evidence again as if for the first time. This process typically takes another couple of years.

Throughout these years of litigation, the officer(s) sued have continued to work, unhampered, while passively litigating their cases, without any personal financial burden whatsoever. That is, the officer sued never pays out of pocket for legal representation; rather, s/he is always represented by a publicly funded attorney (usually the City Attorney). The officer who settles or loses at trial never pays his/her settlement or judgment; rather, the municipality or the police union always picks up the tab in full.

Thus, QI does not actually achieve its goal of insulating police officers from lawsuits in order to protect the public; rather, the public remains policed by the officers sued while the lawsuits against them drag on anyway. All the while, the taxpayer funded police defense attorney could have settled the case in the name of the municipality without the officers involved having to admit liability, instead of resorting to the underhanded, Cobra Kai Dojo sweep-the-leg style QI defense in disservice to the public’s interests.

Ironically, there is harvestable hope in the fact that QI does not satisfy even its own objectives. As a result, no one should fret about discarding it. Congress can and should enact the following reforms to restore the promise of the 1964 Civil Rights Act:

(1) Discard the unjust and unnecessary QI doctrine. The Supreme Court minted it, and Congress can override the Court. Short of that, Congress can at least:

(2) Replace QI with municipal indemnification to guarantee that individual officers do not have to pay their settlements or judgments (already the norm);

(3) Strip the “clearly-established law” analysis from the QI framework;

(4) Define what is “clearly-established” precedent at a high level of generality, and require courts firstto undertake a reasonableness analysis, so that if they find a rights violation was not clearly-established at the time, it will be clearly-established from that point forward;

(5) Codify the cases that instruct judges to look for clearly-established precedents across the nation’s entire body of case law, i.e. throughout both the federal and state systems, and in lower (district) court rulings, not just in appellate and Supreme Court decisions;

(6) Codify the cases that state that QI does not apply in situations involving obvious police misconduct;

(7) Give municipalities carte blanche to settle civil rights cases in the name of the municipality, even over the objections of the individual officers sued;

(8) Codify the cases that state that the less heated the incident is, the more the officers involved should deliberate over their decisions, and the less likely QI is to apply;

(9) Codify the cases that say that where the material facts are disputed, QI does not apply, so that the case should proceed to trial; and,

(10) Legislate that QI is disfavored, and should apply only in cases that are plainly frivolous.

Contrary to the pronouncements of some cynics on the left, discarding QI will work to improve police accountability—by drawing civil rights attorneys back into the practice, and by increasing the cost on municipalities to pay police misconduct judgments above the cost of defending miscreant officers. This in turn will spur oversight and policy reforms at the municipal and departmental levels.

Ben Rosenfeld is a civil rights attorney in San Francisco. Twitter: @benrosenfeldlaw.

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