Police Accountability is a “Non-Starter” Without Discarding the Qualified Immunity Doctrine
Photograph by Nathaniel St. Clair
In reality, meaningful police accountability is a non-starter without discarding QI.
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.