The invisible shield: how activists and lawmakers are breaking down qualified immunity, Part 3
HERB BOYD and DAMASO REYES | 4/15/2021, midnight
Laws to eliminate qualified immunity as a defense were proposed almost as soon as the doctrine became a significant shield that protects law enforcement officers from being sued by those whose federal constitutional rights they violate. Though created by the Supreme Court over two decades ago to limit the liability of state officials under federal civil rights laws, federal lawmakers have always retained the power to limit or abolish it altogether. And state and local lawmakers have also had the ability to adopt analogous state or local civil rights laws that restrict the defense of qualified immunity but decades of tough-on-crime policies, combined with increasingly powerful police unions, made reform seemingly impossible.
The death of George Floyd while in police custody inspired months of protest in 2020, shifting the political calculus for many blue and even purple state legislators. As crowds around the country carried banners demanding governments “Defund the Police,” reform advocates also began lobbying lawmakers to tackle the less well known but important issue of qualified immunity. And over the past year legislatures in Connecticut, Colorado, New Mexico and most dramatically in New York City, have begun to put cracks in the shield of qualified immunity.
While the nation was wracked by demonstrations demanding justice for George Floyd, late last spring in Colorado a group of legislators were struggling to address police reform in the wake of the killing of George Floyd as well as of Elijah McClain, a young massage therapist who died in 2019 while in police custody. McClain had been arrested because he was seen walking down the street, wearing a ski mask, his arms flailing, which his friends claimed were gyrations accompanying the music he was listening to. According to a police report, McClain, 23, and a resident of Aurora, resisted and one officer claimed he heard another shout “he is going for your gun.”
Attorney Mari Newman, long heralded for her civil rights activism, represented the family of Elijah McClain and said that McClain was slammed against a wall and subsequently held on the ground for 15 minutes. The rough encounter left him in distress, and with his arms handcuffed behind his back, one of the officers applied a “carotid artery control hold” according to a district attorney’s report. He repeatedly cried, “I can’t breathe,” and was soon rendered unconscious. The incident bore tragic similarities to what happened to Eric Garner and George Floyd.
McClain was barely responsive when paramedics arrived and injected him with 500 mg of ketamine, an allowable sedative in Colorado to calm excited delirium. While being transported to the hospital he suffered cardiac arrest and was pronounced brain dead three days later on August 30, 2019. An autopsy identified McClain’s history of asthma and the carotid hold, neither of which the report said contributed to his death, according to the report; it also noted the amount of ketamine in his system was at a “therapeutic level.” The officers involved were initially placed on administrative leave but were later reinstated when prosecutors decided not to file criminal charges, prompting Rep. Leslie Herod, the vice chair of the Colorado House Judiciary Committee, to launch a campaign that led to the implementation of SB 217.
Activists Move the Needle on Reform
In an interview with the Amsterdam News Rep. Herod made a direct connection to the deaths of Black Americans, and the protests they inspired, to her ability to move this legislation forward. She said that after the death of McClain she drafted a police reform bill, albeit without addressing qualified immunity, but she had, with the exception of her caucus, “no support to introduce the bill––not from either side of the aisle.” That changed quickly after the killing of George Floyd and the outrage which ensued. The “protestors demanded change and gave us an opportunity to pass a bill and to make real change in Colorado. So if it weren’t for the protests, we wouldn’t have 217, and I’m really proud of the work that we were able to do to be the first state in the nation to end qualified immunity for law enforcement officers through legislation.”
But the near daily protests in Colorado and around the nation did more than spur legislators to action, they also informed them.
“Well, honestly, I didn’t know much about qualified immunity until the protests happened. And so I had conversations with folks like Elijah McClain’s mother...and in speaking to people who were survivors of police brutality and their family members I realized that qualified immunity was such an important piece. But at the same time, we started to see a lot of research and data that showed that ending qualified immunity would make a huge impact on the way law enforcement officers interact in our communities,” Rep. Herod told the Amsterdam News.
In June of 2020 Gov. Jared Polis signed the Act which removes qualified immunity as a defense for law enforcement officers in Colorado state civil rights lawsuits. The bill, entitled the Enhance Law Enforcement Integrity Act, allows a prevailing plaintiff reasonable attorney’s fees, and asserts that qualified immunity is not a defense to a civil action brought for violations of Colorado’s bill of rights. It also directs the law enforcement officer’s employer to indemnify them unless they determine he or she did not act upon a “good faith and reasonable belief that the action was lawful.” In that case the officer is then personally liable for five percent of the judgment or $25,000, whichever is less. If the judgment cannot be fulfilled by the officer, then the employer must satisfy the entire amount.
In August 2020, Connecticut became the second state to limit qualified immunity in its courts, though its legislation lacks Colorado’s stronger reforms. More of an evolution than a revolution, this bill builds on more than 20 years of precedent which in Connecticut has allowed individuals to sue police officers in certain limited circumstances. In 1998, the Connecticut Supreme Court created “a state constitutional tort remedy” allowing victims to sue police for abuse and misconduct.
Connecticut’s HB 6004 barely passed in the state’s House of Representatives due to pressure from police unions, among others. The new law, like the Colorado statute, creates a new civil action allowing people deprived of their state constitutional rights by police to sue for damages and other relief. But it is hampered by a number of old loopholes, including a provision that grants police officers immunity if they objectively acted in good faith and that their conduct did not violate the law, a stipulation imposed since the inception of the qualified immunity doctrine in the 1960s with respect to the federal Civil Rights Act of 1871, and a precept that has since been expanded by the U.S. Supreme Court. Some fear that this vague exception will dramatically weaken the bill. In any event, neither Connecticut nor Colorado’s bill limit the qualified immunity doctrine in connection with federal civil rights claims.
New Mexico is among a number of other states considering legislation around qualified immunity and is the latest to act. The New Mexico Civil Rights Act allows people deprived of their rights under New Mexico’s state constitution to sue the public bodies responsible. It specifies that the defense of qualified immunity will not be available to law enforcement in these cases. In April 2021 New Mexico became only the third state out of 50 to abolish or reform this invisible shield, and, unlike the bills in Colorado and Connecticut that only restricted qualified immunity for police officers with respect to state civil rights claims, it would apply to all government officials, though only public bodies may be sued.
While qualified immunity is being hotly debated on the local and state level, federal legislators have also been pushing for reform. Democratic Party Rep. Ayanna Pressley of Massachusetts has voiced her support for abolishing qualified immunity by reintroducing a bill put forth by Rep. Justin Amash of Michigan last year. In June 2020, Amash, a former Republican-turned-Libertarian, unveiled the Ending Qualified Immunity Act and Pressley signed on as a co-sponsor but the bill died before coming to a vote. Now the same Act has been proposed again by Sens. Ed Markey and Elizabeth Warren in the Senate and Rep. Pressley in the House. The landmark bill would end qualified immunity as a protection for all government officials, eliminate the need for a victim to find a similar case, and prevent the defendant from claiming that they could not have known that their conduct was unlawful.
“Qualified immunity makes it almost impossible for a victim of excessive force by a police officer to hold that officer accountable in a court of law, and we must abolish it now. If we truly want to change the culture of police violence against Black and Brown Americans, then we need to start holding accountable the officers who abuse their positions of trust and responsibility in our communities,” Sen. Markey said in a statement to the Amsterdam News.
H.R.1280, the George Floyd Justice in Policing Act of 2021, which narrowly passed the House, contains language that ends the use of qualified immunity as a defense for local or federal law enforcement though the evenly divided Senate has so far not moved to vote on the legislation.
Reform Comes to the Big Apple
On March 25, 2021 the New York City Council voted to effectively end qualified immunity as a defense in New York courts for police officers sued for certain local civil rights violations, becoming the first city in the country to pass such a bill. Corey Johnson, the Council speaker, praised the passage of the bill and placed it in historical context. “Qualified immunity was established in 1967 in Mississippi to prevent Freedom Riders from holding public officials liable even when they broke the law,” he tweeted, and noted that the doctrine was “rooted in our nation’s history of systemic racism… It should never have been allowed, but I’m proud that we took action today to end it here in NYC.”
Councilman Stephen Levin, the sponsor of the legislation, framed the legislative action within the Council’s search for justice over the past year. “I think it’s a direct response to the killing of George Floyd last year and Breonna Taylor,” he said in an interview. “It was important that the Council not just kind of react in the moment to that, but think long and hard about what are some serious policy changes that we could take on an in Act that would make a real difference in the way that police interact with the residents of the city, the way that police face accountability and the rights of the people to have their constitutional rights protected,” he added.
Levin told the Amsterdam News that what “qualified immunity amounts to in today’s age is impunity. It’s being beyond the reach of the law, beyond the reach of being held to account and so I think that it is important...for those whose rights are violated to know that they have recourse, that their case won’t be thrown out before any facts are even heard.”
Like many other proposed law enforcement reforms, the movement to abolish this protection is running into another bulwark: police unions. And few are as vociferous in the defense of their members as New York’s Police Benevolent Association, headed by Pat Lynch. “New Yorkers are getting shot, and police officers are on the streets day and night, trying to stop the bloodshed,” Lynch said in a statement issued after the Council passed its police reform legislation.
“Once again the City Council is trying to pull the wool over the eyes of the public by passing more laws in the name of so-called police reform,” Paul DiGiacomo, Detectives Endowment Association president, said in the same statement.
The idea that police officers, suddenly liable for errors made in the line of duty, would be so concerned about being sued that they would be unable to perform their duties has been especially pernicious. UCLA Law Professor Joanna Schwartz, who has spent years investigating this claim, which even the Supreme Court has used as a reason to defend the doctrine, said in an interview that “there’s no empirical basis for their concerns. Police officers virtually never contribute anything to settlements and judgments entered against them, because there are indemnification agreements in every state, and local governments almost always agreed to pay settlements in judgments entered on their officers’ behalf.”
Even the most clear-cut violators who wear a badge keep the protection of indemnification “even if they’ve been disciplined, even if they’ve been fired, even if they’ve been criminally prosecuted, even if punitive damages have been awarded against them, so concerns about financial liability are empirically false,” she added.
While many reformers hope that ending this legal shield will make officers personally more accountable, one of the strongest criticisms of ending qualified immunity is the belief that judgments will have little to no impact on the actions of individual officers exactly because those judgments are almost always indemnified by governments.
During an interview with the Amsterdam News, New York Law School Professor Kirk Burkhalter, a retired NYPD detective who is not a proponent of fully abolishing qualified immunity but is willing to consider reforms of the doctrine, posed a hypothetical. “Let’s take New York: we abolish qualified immunity, and the onus falls on the city to indemnify police officers, that’s going to be a tremendous expense to the city…and all of a sudden the city law department is paying out billions of dollars in losses because of indemnification, well, guess what? Sooner or later, they’re going to stop doing that. So there’s certainly an argument that by abolishing it in whole, you might have a positive effect.”
Of course not everyone agrees. “If police departments are largely footing the bill, perhaps the increased liability risk would encourage them to take more steps to prevent abuses. But governments are not profit-maximizing entities, and they do not respond to costs the way private businesses do. Sometimes, politicians may conclude it’s easier to just keep paying judgments rather than change police culture in meaningful ways,” Daniel Epps, an associate professor of law at Washington University in St. Louis, wrote in a New York Times op-ed last year. Those on both sides of the issue have noted that the multimillion dollar settlements that cities across the country have been paying out are rarely accompanied by meaningful police reform.
Whether ending qualified immunity will change that remains to be seen. In an interview Rebecca Wallace, an attorney with the ACLU of Colorado said “changing civil liability is not going to, on its own, change police culture, but it’s hard to imagine a change of police culture without a change in the law.
Seeking Justice and Measuring Success
If, as opponents contend, ending qualified immunity alone won’t change law enforcement behavior or motivate governments to police the police then what is the point? While improving police community relations and deterring constitutional violations would be welcome outcomes for reformers, measuring the impact of limiting or ending qualified immunity is far simpler.
For decades this doctrine, which was created, upheld and imposed by unelected judges interpreting federal civil rights law, has kept uncounted numbers of victims not just from receiving justice, but from even having their full day in court as cases are often dismissed well before trial.
“It’s important to remember that because of qualified immunity we can have cases where the jury, the parties on both sides and the judge agree that a person’s constitutional rights were violated. And that person or, if the person was killed, their family, is nonetheless kicked out of court simply because no one’s constitutional rights were violated in a published court opinion quite the same way. It’s quite perverse,” Amir Ali, deputy director of the Supreme Court and Appellate Program at the MacArthur Justice Center, and a lawyer who represents plaintiffs in qualified immunity cases, told the Amsterdam News.
“When a police officer finds a new and creative way to violate someone’s rights, qualified immunity gives them an argument that they should be immune for that reason alone,” he added.
In Colorado, the first state to allow people to sue for deprivations of state constitutional rights and limit qualified immunity as a defense, at least one case has already been filed in state court under the Enhance Law Enforcement Integrity Act, a lawsuit by a Black family held at gunpoint after their car was confused by police officers with a stolen vehicle.
Rebecca Wallace of the ACLU of Colorado indicated that it would take years to understand the full impact the new law would have on litigation but that “civil rights plaintiffs and their attorneys are feeling empowered to file cases based on whether or not the actions by law enforcement were constitutional rather than whether or not a court is going to protect an officer for unconstitutional conduct.”
“I do believe that removing the specter of qualified immunity is going to allow for the filing of many more meritorious claims against police officers in Colorado and that we’re going to see a higher degree of legal accountability,” she added.
Even when a federal civil rights case has been allowed to move forward, this invisible shield is often used as grounds for appeals as the case of Matthew Jones, highlighted in part two of this series, illustrates.
An in-depth study by Alexander A. Reinert, the Max Freund Professor of Litigation & Advocacy at Cardozo Law School, throws into stark relief how often qualified immunity is used by defendants and is successful as grounds for appeals in the federal court system. According to his study of more than 4,000 decisions from federal courts of appeals where a qualified immunity defense was raised, a court granted the defense more than 60% of the time.
“For those who have argued for revisiting or eliminating qualified immunity, these data offer additional evidence that, when raised, [qualified] immunity is a powerful defense. Overall, defendants experienced far greater success than plaintiffs in the courts of appeals, both in terms of overall outcomes and their success in defending successful outcomes on appeal,” Reinert concluded in his paper.
It is far too early to tell whether the seeds planted by opponents of qualified immunity will bear the fruit that they are hoping for. While many laws have been proposed on the state and local level, only a few have been signed into law and it remains to be seen whether President Joe Biden and the Democratic leadership of Congress, in the face of near united Republican Party opposition, will spend their political capital on this issue. While changes in police behavior, training and use of force are indeed outcomes desired by qualified immunity reformers, those remain secondary to the main goal of those who wish to see this court created doctrine eliminated: a restoration of the ability for those who have had their constitutional rights violated to be able to sue those responsible. Every time a new law limiting or abolishing qualified immunity is passed reformers get a little closer to seeing the realization of their dream of a day when victims can pursue justice even if the perpetrator wears a badge.
This series was made possible by grants from the Fund for Investigative Journalism and the Solutions Journalism Network.