The Clash once famously asked, “Should I stay? Or should I go?” While the British punk rock band was referring to remaining in a relationship or moving on, the same question applies to the United States’ toxic dependence on a legal safeguard that protects cops after wrongdoing: qualified immunity.
But what is qualified immunity? Put simply, according to the National Conference of State Legislatures, qualified immunity is a doctrine that provides state and local officials with immunity from “individual liability unless the official violated a clearly established constitutional right.” For police officers to face civil legal action, there needs to be a defined precedent, meaning someone has to have sued and won a similar case beforehand.
But how do you prove precedence if you’re the first to sue an officer for violating this particular right? It’s almost impossible to simply create the required precedent, which perpetuates injustice through the criminal justice system. The cyclical nature of qualified immunity means courts often rule against plaintiffs and in favor of officers who have committed egregious actions.
One noteworthy example comes from 2014, when Nashville police officers sent a police dog after a man who had already surrendered and was sitting on the ground with his hands above his head. After the dog bit him several times, the man sued, citing another court case where a police dog was released on a man surrendering by lying down. The court ruled that because the man was sitting, the two incidents were dissimilar and granted qualified immunity to the officers, while the man got no compensation for the injuries sustained during the altercation.
This failure to bring justice is one of many startling examples of how qualified immunity often works more as a shield from any blame rather than a way to protect police officers from bogus litigation.
More broadly speaking, the courts of the United States have made a shift away from favoring plaintiffs in police violence cases. Specifically, a Reuters analysis of the appellate court cases over the past nineteen years found that courts have increasingly granted officers immunity in suits of excessive force and even more so when civilians were unarmed. This analysis highlights a disturbing shift in responsibility that threatens the safety of American citizens everywhere. But as unnerving as this shift is, we’ve seen it happen for years.
According to a criminal justice professor at Bowling Green State University’s police crime database, only 110 police officers have faced manslaughter or murder charges from on-duty shootings, even though the Washington Post’s police shooting database details that around 1000 people are fatally shot by police annually. As officers learn that the punishments for using excessive force are almost non-existent, the likelihood of more abuses of power occurring undoubtedly rises.
Opponents of repealing qualified immunity frequently cite evidence that it would complicate officers ’ jobs and make them reluctant to act in dangerous situations. There is solid evidence of this, such as in March of 2021, when the Vermont Association of Chiefs of Police interviewed various officers from across the state, and 85% said they’d be reluctant to perform their duties if the state repealed qualified immunity. However, the complications caused by officers going unpunished for abuse of power exceeded the worries about qualified immunity.
Pew Research specifically quantifies that 86% of officers stated that public backlash over notorious incidents of police brutality, rather than a potential legal liability, has complicated their daily duties and made them reluctant to use any force even when it was justifiable. This hesitancy to use force threatens the officers’ safety and can be easily fixed by holding officers accountable for their actions.
My home state of Colorado was the first in the United States to repeal qualified immunity, and even after that decision, cops have received protection from litigation when needed. Officers in Lafayette, Colorado, sent in a dog to detain Adrian Martinez, who had attempted to break into cars earlier, not knowing at the time they caught up to him that he was unconscious since he had hidden in a storage closet. Upon discovering Martinez lying immobile, the officers called off the dog.
Judges ruled in favor of the officers because they were unaware of Martinez’s condition and intervened once they realized.
A massive factor in the court’s decision was the body camera footage from the officers, which points out the importance of other reforms in repealing qualified immunity. Body cameras are a pivotal reform as they protect officers from the frivolous lawsuits that many cops worried would come from repealing qualified immunity. A report from the US Department of Justice found that police officers who wore body cameras were 14% less likely to face citizens’ complaints as the footage reduced false reporting.
The most ideal policy action to help protect civilians and officers is to repeal qualified immunity and require body cameras, which holds both parties accountable in their interactions while removing impervious legal barriers to justice. When it comes to answering the Clash’s question, it’s clear that qualified immunity should go.
