Criminal Justice Reform: Ending Qualified Immunity to Restore the Constitutional Balance

September 2020 by awarding monetary damages. But in many cases, qualified immunity protects police tl;dr………………….……….....… from liability by imposing nearly ​ insurmountable procedural hurdles. This “Qualified immunity” is a doctrine that protects a large swath of police misconduct protects government officials, such as police from accountability by civil rights lawsuits. officers, from civil rights lawsuits when they are acting in their official capacity. Criminal KEY TAKEAWAYS………….....… ​ justice reform efforts should focus on ending qualified immunity and restoring the CIVIL RIGHTS LAWSUITS ARE DESIGNED TO constitutional balance between empowering HOLD POLICE OFFICERS LIABLE FOR officers to protect the public while also MISCONDUCT deterring violations of civil liberties. The purpose of civil rights lawsuits is to give The Debate: Americans redress when their constitutional ​ rights are violated by public officials. In an age of unrest due to recorded police Originally passed as part of the Civil Rights misconduct, there are calls for criminal Act of 1871 to combat oppressive justice reform. The debate has primarily government conduct and vigilante groups focused on slogans, such as Black Lives like the Ku Klux Klan, the statute known as Matter versus Blue Lives Matter, or Defund Section 1983 grants plaintiffs the right to sue the Police versus Defend the Police. While when their civil rights are violated. Civil there have been many proposals for rights cases alleging unreasonable or outlawing particular police practices and excessive force generally rely on the Fourth increasing training, one of the most Amendment. important aspects of holding police accountable for misconduct has received POLICY SHOULD ALIGN INCENTIVES BY more limited attention: civil rights litigation. DETERRING MISCONDUCT WHILE But… civil rights lawsuits have limited ability EMPOWERING OFFICERS TO PROTECT THE ​ to hold officers accountable due to the PUBLIC doctrine of qualified immunity. In a civil A well-functioning legal system would rights lawsuit, the goal is to make the victim balance the need to empower police officers (or their families) of a rights violation whole to protect the public with the need to deter

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police misconduct. Theoretically, the optimal alleged, if proven, would be illegal. This balance is struck by holding officers liable allows police misconduct to continue when they genuinely commit a wrong. This is without the accountability that civil rights necessary to deter future bad conduct and lawsuits are supposed to provide. properly align officer incentives going forward. Juries should, after hearing all the ENDING THE QUALIFIED IMMUNITY evidence, make a decision about whether DOCTRINE WOULD HELP RESTORE THE constitutional rights were violated and the CONSTITUTIONAL BALANCE extent of damages necessary to make a plaintiff whole. To restore the constitutional balance, In “excessive force” cases, officers are already qualified immunity must be reconsidered. given considerable deference under the law. Courts believed government officials needed Jurors must consider the situation from the “breathing room to make reasonable but perspective of a “reasonable officer,” giving mistaken judgments about open legal due deference to officers to make split questions,” but the reality is qualified second decisions. As in other areas of the immunity has served as a shield for common law that rely on a “reasonable misconduct. Congress should pass person” standard, civil rights cases would legislation clarifying that qualified immunity eventually develop a “reasonable officer” is unavailable when government officials standard to determine when police officers break the law and courts should overturn acting unreasonably and should be held this judge-created doctrine. At the very accountable. least, the doctrine should be abrogated in cases of excessive force to allow for the development of the law on what is QUALIFIED IMMUNITY INTERFERES WITH A “reasonable.” WELL FUNCTIONING LEGAL SYSTEM Courts apply a two-part analysis when For a fuller explanation of these and related determining whether an official is entitled to issues, see Ben Sperry’s op-ed in The Hill:, qualified immunity: (1) whether the facts “How qualified immunity promotes the ​ alleged by the plaintiff amount to a unreasonable use of force by police officers,” ​ constitutional violation, and (2) if so, whether and his blog post on Truth on the Market: the constitutional right was “clearly “Setting Up a Fair System for Determining ​ established” at the time of the misconduct. In Police Misconduct: Towards A Law & other words, even where there are facts Economics Analysis of Qualified Immunity.” alleged which would be a constitutional ​ violation, if there is not a previous case with nearly identical facts where a court found a ​ CONTACT US ……..….…... violation of the law, the case will be ​ dismissed. In practice, the level of similarity necessary means that the bulk of cases are treated as novel, and officers are granted Ben Sperry qualified immunity. Associate Director Qualified immunity thus prevents the Legal Research [email protected] development of a well-functioning system because plaintiffs are often unable to get to a jury even when judges agree the conduct

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