Police Reform in America: Examining The ‘Ending Qualified Immunity Act’

America stands at the crossroads. The tragic death of George Floyd has shone a spotlight on police brutality against African-Americans. Attention has shifted to reforming the police, and punishing misconduct. A bill has been introduced in the US Congress to end the prohibition on suing police officers. Entitled the ‘Ending Qualified Immunity Act’, the proposed bill would make it easier for victims of police brutality to secure damages.

Background

Remedies for civil rights violations have existed in the federal courts since 1871. Now known as ‘Section 1983’, it gave private citizens the right to sue state officials for violating constitutional rights. It was enacted by the federal government in response to the unwillingness of state officials to deal with terrorist acts committed by the Ku Klux Klan. However, it was little used until 1961. In the landmark case of Monroe v Pape, it was affirmed that victims of police violence could claim damages for acts committed by the police.

Subsequently, the Supreme Court created immunity defences for police officers to civil liability. They justified this on the basis that Section 1983 incorporated common law immunities that were in place in 1871. Thus, in 1967 the Court in Pierson v Ray affirmed that police officers who used excessive force ‘in good faith’ and ‘with probable cause’ were protected against lawsuits. In 1982, the Court adopted a new test in Harlow v Fitzgerald. A victim would be denied damages unless they proved the officer’s conduct violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known’.

The Development of Qualified Immunity

Since 1982, the courts have narrowed the ability of victims to challenge immunity defences. In Ashcroft v al-Kidd, the Supreme Court held that the law could only be deemed ‘clearly established’ where there was existing precedent that placed the legal question ‘beyond debate’. This significantly limits the ability of claimants to argue for the removal of the immunity defence.

Further to this, in 2009 the Court raised the bar even higher. In Pearson v Callahan they gave judges the option to bypass the question of whether the police used excessive force, and instead focus purely on whether the conduct violated clearly established law. Since that decision, the courts have rarely assessed the question of whether the police have used excessive force.

Assessing Qualified Immunity

In Harlow, the Court took a benign view of police powers. They emphasised the importance of protecting officials, and ensuring that the police could engage in the ‘vigorous’ exercise of authority. Further, they were concerned that litigation would have a chilling effect on law enforcement and could deter ‘able citizens from acceptance of public office’.

Criticism of the doctrine has been made from both the conservative and liberal wings of the Court. Justice Clarence Thomas has described qualified immunity jurisprudence as ‘free-wheeling policy choices’ which have little basis in the statute. Similarly, Justices Sotomayor and Ginsberg described the doctrine as ‘an absolute shield for law enforcement officers’.

The Bill

The ‘Ending Qualified Immunity Act’ would amend Section 1983 and add the following language:

“It shall not be a defense or immunity to any action brought under this section that the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when it was committed. Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the Constitution or laws were not clearly established at the time of their deprivation by the defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.”

Conclusion

Damages for police misconduct is central to ensuring police accountability. Ending qualified immunity would force the police to explain and justify their conduct in an open and impartial forum. It would also provide a powerful incentive for police forces across the country to root out bad behaviour. Institutional change cannot take place without legal accountability.