Would ending qualified immunity figure prominently in stopping police brutality?

A. Vince Colella

The killing of George Floyd has led to a watershed moment in a storied evolution of the modern Civil Rights Era. What was once thought to be isolated incidents of bad judgment by police officers is now recognized as widespread and systemic failure. As the nation’s collective cry for reform rages on, Congress is searching for a solution. Earlier this month, two bills were introduced and passed in Congress. De-militarization of law enforcement and re-training were the focal points of a Senate bill that failed to obtain House approval. The House took a more aggressive approach to police reform by passing a bill (“Justice in Policing”) that abolishes qualified immunity for law enforcement. Political lines have been drawn while the protests and civil unrest continue to fester.

Preceding this battle between the House and Senate over legislation to repeal qualified immunity, the issue was presented to the U.S. Supreme Court in the case of Baxter v Bracey, No. 18-1287, 2020 U.S. LEXIS 3249 (June 15, 2020). Baxter centered around a man who was bitten by a police dog that was unleashed on him while he was sitting with his hands in the air, having surrendered to the police. In its Petition for a Writ of Certiorari, the ACLU questioned the usefulness of the qualified immunity doctrine in serving its purported goals. It claimed, “[t]he doctrine stultifies the development of constitutional law and leaves the contours of constitutional rights undefined, by encouraging judges to avoid constitutional questions even when they are sharply presented.” Adding, that immunity has “evaded consistent application” because the “clearly established” requirement is essentially a moving target. The ACLU also argued that qualified immunity is a ‘judge-made’ doctrine that was not rooted in the common law predating the enactment of 42 U.S.C. 1983, nor did the statute itself provide for immunity as a defense. In terms of public policy, the ACLU aptly pointed out that the notion of officers being in fear of personal liability for reasonable mistakes and having to pay damages is debunked by the universal practice of indemnification, citing a study that found only one-half of a percent of all verdicts and settlements resulted in an officer having to pay out of their own pocket.

The scholarly arguments for abolishment were compelling in and of themselves; however, a scathing concurrence in Ziglar v Abbasi, 137 S. Ct. 1843 (2017) by Clarence Thomas — the high court’s most conservative jurist — put Baxter followers on high alert. Thomas opined, “until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress.” Id at 1872. And Thomas was not alone. Justices Sotomayer and Ginsburg also expressed concern about the doctrine, arguing that immunity “sends an alarming signal” to police officers that they can “shoot first and think later.” Kisela v Hughs, 138 S. Ct. 1148, 1162 (2018) Having one-third of the Supreme Court, including its most ardent right winger, casting aspersions on qualified immunity and protests raging across the country, the stage was set for a revolutionary decision from the Supreme Court. However, on June 15, 2020 shortly after the Court decisively ruled in favor of equal employment rights for gay and transgender people, the high court surreptitiously denied cert in Baxter (receiving only three votes in favor of hearing the petition). In a fiery dissent, Thomas stated he had “strong doubts” in the immunity doctrine and downplayed the need to make the defense available to officers based upon practical considerations that no longer exist.

Absent a ruling from the Supreme Court, qualified immunity will continue to prevent victims of unlawful deadly force from reaching the trial court — where jurors can decide the “objective reasonableness” of the officers’ conduct. In fact, from a statistical perspective, the protections afforded to law enforcement have been found to shield officers from liability in 57 percent of the cases filed between 2015 and 2019 [Reuters, May 8, 2020]. Moreover, if you consider that a singular percentage of police officers have been charged, and even less convicted during this time period (despite the staggering number of shootings), it is clear the balance of justice in the criminal system weighs largely in favor of the officers. The culmination of these protections from criminal prosecution and civil liability has led to an impunity for officers that is likely to be shaping their conduct in the field. Therefore, while angry protests may generate media attention and shape our own conversations, true change can only be accomplished by a repeal of qualified immunity or a decision from the high court finding it unconstitutional.

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A. Vince Colella is a founding partner of Moss & Colella P.C., a Southfieldbased law firm specializing in personal injury and civil rights. He can be reached at vcolella@mosscolella.com.