Police reform has been at the forefront of protests the past few weeks, following the death of George Floyd in Minneapolis.
The qualified immunity doctrine is getting a lot of attention.
“Qualified immunity is a doctrine that was created by the Supreme Court in 1967 in a case called Pierson v. Ray, and when the Supreme Court announced the existence of qualified immunity, they described it as a good faith defense,” Joanna Schwartz, a professor at the UCLA School of Law, said.
However, there have been debates on how this doctrine can be used.
In recent weeks, Congressman Justin Amash proposed the “Ending Qualified Immunity Act” (H.R. 7085).
“Qualified immunity is just another example of a justice system that is not working for people, and preventing people from getting the redress they deserve,” Representative Justin Amash (L-Michigan) said.
So, we dove into qualified immunity with Joanna Shwartz, a law professor who studies civil rights litigation, and Justin Smith, a sheriff in Larimer County, Colorado.
“Qualified immunity first of all has nothing to do with criminal immunity,” Sheriff Justin Smith said.
Smith has been with the Larimer County Sheriff’s Department for nearly three decades.
“Who in their right mind would build a career on running towards gun fire and confronting an armed suspect? Why would you do it without some type of civil protection?,” he explained.
We sat down with him as he explained why qualified immunity is important for his officers.
“I’d simply ask the question to the average American, is a police officer expected to be perfect in all of their actions in a split second?,” he asked.
Smith said without qualified immunity, one incorrect decision made by an officer could cost a lot.
“If you didn’t call that exactly right by one judges interpretation, that’s a lawsuit,” he said.
“Every time the officer puts on the shirt, the badge, straps on the firearm, comes to work, every action they take responding to a case essentially is as if they went to Vegas and they walked up to the table, placed a five dollar bet, and in Colorado for example, would cost them up to $100,000. Who’s going to make that bet?,” Smith explained.
However, those who want qualified immunity removed say the doctrine has changed over the years and it’s not necessary to protect officers who act in good faith when it comes to protection of rights.
“Concerns about split second decision making…are already protected from liability by the Supreme Court’s construction of what the Fourth Amendment allows. Qualified immunity is unnecessary to do that,” Schwartz explained.
She went on to explain why she believes that qualified immunity isn’t necessary for the protection of money, either.
“I studied lawsuit payouts across the country over several years, I found that police officer personally contributed .02 percent of the total dollars paid to plaintiffs,” she said.
Schwartz said while the doctrine was originally created as a good faith defense, it has changed over the years to make it harder for people to file lawsuits against officers.
“In order to defeat qualified immunity, find a prior case with virtually identical facts in which a court announced that that conduct was unconstitutional,” she said.
Which has been an issue for James King from Michigan, who told a reporter he was assaulted by an officer in plain clothes in a mistaken identity case. The incident was caught on camera back in July 2014.
“The simple fact is the majority of this time this situation happens to anyone, they have no recourse,” King said.
Officers are often forced to make decisions in a split second.
“This is a risk taking profession,” Smith said. “We can say the criminal justice system isn’t perfect and that’s accurate. Nothing in society is perfect. I think it’s overall improved significantly over the years.”
But Schwartz thinks officers acting in good faith can be protected by other measures.
“Qualified immunity is not necessary or well suited to play that role in weeding out insubstantial cases,” she said.
Both Smith and Schwartz agree that when looking at proposed changes to qualified immunity on the federal and state level, it’s important to look at what officers the bill is including — whether that be local, county, state, or federal officers.
“Congress’ bills at this moment only end qualified immunity for state and local officials,” Schwartz explained. “As we are thinking about state and local law enforcement, we should not overlook the role of federal law enforcement and other government officials.”