[Contrary to what Qualified Immunity’s defenders claim, it in no
way helps police ‘do their jobs.’ It simply helps them get away
with violating people’s civil rights.]
[[link removed]]

POLICE ACCOUNTABILITY IS A “NON-STARTER” WITHOUT DISCARDING THE
QUALIFIED IMMUNITY DOCTRINE  
[[link removed]]


 

Ben Rosenfeld
February 13, 2023
CounterPunch
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ Contrary to what Qualified Immunity’s defenders claim, it in no
way helps police ‘do their jobs.’ It simply helps them get away
with violating people’s civil rights. _

, Photograph by Nathaniel St. Clair

 

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.

A principal purpose of the Federal Civil Rights Act of 1964 was to
give Black victims of police abuse access to justice in federal fora
outside of the chummy white racist county court bastions of the time.
But QI has all but obliterated that avenue. As a result, historic
victims of police abuse are regularly re-victimized in court.

Because civil rights litigation is a lottery, civil rights lawyers, a
major xxxxxx of police accountability—who typically front the costs
of litigation for our indigent clients and rely on attorney’s fees
awards if/when we win—are quitting the practice in droves. We simply
cannot afford to risk the stakes. I have had to “diversify” my
practice over the years by taking ever fewer civil rights cases as a
share of my caseload.

Contrary to what QI’s defenders claim, it in no way helps police
‘do their jobs.’ It simply helps them get away with violating
people’s civil rights. Consider:

The stated purpose of QI is to protect the _public at large _by
preventing officers from having to second-guess their instincts in
dangerous and fluid situations—_not to shield individual officers_.
Toward this end, QI was conceived not just as an immunity from
liability, but as an immunity from suit, tasking courts with weeding
out frivolous claims early in the litigation. In practice, however,
most cases are not dismissed under QI until _years_ into the case,
at the summary judgment stage, after discovery (the collection and
exchange of evidence) has been completed.

Then, if the plaintiff appeals, the federal appeals court reviews the
lower (district) court’s decision “_de novo_,” meaning anew,
viewing the claims and evidence again as if for the first time. This
process typically takes another couple of years.

Throughout these _years_ of litigation, the officer(s) sued have
continued to work, unhampered, while _passively_ litigating their
cases, without any personal financial burden whatsoever. That is, the
officer sued _never_ pays out of pocket for legal representation;
rather, s/he is _always_ represented by a publicly funded attorney
(usually the City Attorney). The officer who settles or loses at
trial _never_ pays his/her settlement or judgment; rather, the
municipality or the police union _always_ picks up the tab in full.

Thus, QI does not actually achieve its goal of insulating police
officers from lawsuits in order to protect the public; rather, the
public remains policed by the officers sued while the lawsuits against
them drag on anyway. All the while, the taxpayer funded police defense
attorney could have settled the case in the name of the municipality
without the officers involved having to admit liability, instead of
resorting to the underhanded, Cobra Kai Dojo sweep-the-leg style QI
defense in disservice to the public’s interests.

Ironically, there is harvestable hope in the fact that QI does not
satisfy even its own objectives. As a result, _no one should fret
about discarding it_. Congress can and should enact the following
reforms to restore the promise of the 1964 Civil Rights Act:

(1) Discard the unjust and _unnecessary_ QI doctrine. The Supreme
Court minted it, and Congress can override the Court. Short of that,
Congress can at least:

(2) Replace QI with municipal indemnification to guarantee that
individual officers do not have to pay their settlements or judgments
(already the norm);

(3) Strip the “clearly-established law” analysis from the QI
framework;

(4) Define what is “clearly-established” precedent at a high level
of generality, and require courts _first_to undertake a
reasonableness analysis, so that if they find a rights violation was
not clearly-established at the time, it will be clearly-established
from that point forward;

(5) Codify the cases that instruct judges to look for
clearly-established precedents across the nation’s entire body of
case law, i.e. throughout both the federal and state systems, and in
lower (district) court rulings, not just in appellate and Supreme
Court decisions;

(6) Codify the cases that state that QI does not apply in situations
involving obvious police misconduct;

(7) Give municipalities carte blanche to settle civil rights cases in
the name of the municipality, even over the objections of the
individual officers sued;

(8) Codify the cases that state that the less heated the incident is,
the more the officers involved should deliberate over their decisions,
and the less likely QI is to apply;

(9) Codify the cases that say that where the material facts are
disputed, QI does not apply, so that the case should proceed to trial;
and,

(10) Legislate that QI is disfavored, and should apply only in cases
that are plainly frivolous.

Contrary to the pronouncements of some cynics on the left, discarding
QI _will_ work to improve police accountability—by drawing civil
rights attorneys back into the practice, and by increasing the cost on
municipalities to pay police misconduct judgments above the cost of
defending miscreant officers. This in turn will spur oversight and
policy reforms at the municipal and departmental levels.

_BEN ROSENFELD is a civil rights attorney in San Francisco.
Twitter: @benrosenfeldlaw [[link removed]]._

_CounterPunch is reader supported! Please help keep us alive
[[link removed]]._

_The CounterPunch website is offered at no charge to the general
public over the world wide web. New articles, from an independent
left-leaning perspective, are posted every weekday. A batch of several
articles, including the Poet’s Basement, and Roaming Charges by
Jeffrey St. Clair, are posted in the Weekend Edition. After the
initial posting, these articles are available in the archives which
can be searched by using any of the search boxes on the website.
 CounterPunch also publishes books, and published a newsletter and
magazine from 1993 to 2020.  The COUNTERPUNCH+ Subscriber area of
our website features subscriber content and access._

* police accountability
[[link removed]]
* police immunity
[[link removed]]
* police misconduct
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]

Manage subscription
[[link removed]]

Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]