Demands for police reform have been loud and ongoing for the past several months, and the desire for change has taken many forms. The widely quoted idea of “defunding” the police includes transferring law enforcement resources to social services and other agencies, but it has little political or public support. A Rasmussen poll last July reported that only two out of 10 people polled supported defunding the police in their own communities.

Another less widely publicized movement calls for ending qualified immunity in law enforcement, which would make police officers more liable to civil lawsuits when accused of abusing their authority in the line of duty. Two prominent people leading the effort are Ben Cohen and Jerry Greenfield, best known as co-founders of Ben & Jerry’s Ice Cream. The pair say they are speaking for themselves rather than their company and emphasize that their movement’s goal is to educate the public about the need to eliminate qualified immunity for police officers.

However, for both defunding law enforcement and ending qualified immunity, the incidents driving these demands are the exception rather than the rule. The real solution likely lies in better policy, training, and process measures.

What is qualified immunity?

Qualified immunity is a legal doctrine that prevents government officials from being charged in federal civil lawsuits for illegal and unconstitutional acts. It indemnifies officers from civil charges for violating a citizen’s rights and absolves them from financial damages.

Qualified immunity differs from absolute immunity in that the latter provides total protection from civil liability. It generally applies to legislators, judges, prosecutors, and presidential aides.

Civil rights lawsuits in qualified immunity cases only apply if a plaintiff’s “clearly established” rights have been violated. That’s a problem, according to opponents of qualified immunity. “Clearly established” is a tough legal threshold to meet.

One example is a 2020 case in which the 5th Circuit Court of Appeals denied a Texas prison inmate the right to sue a prison guard who allegedly pepper-sprayed him in the eyes “for no reason.” The prison guard was granted qualified immunity because of legal precedents involving being tasered or struck. However, there was no “clearly established” precedent regarding pepper spray.

The doctrine of qualified immunity balances two vital interests—the need to shield public officials such as police officers from harassment and liability when performing their duties reasonably, and the desire to hold them accountable when they abuse their power.

History of qualified immunity

The doctrine of qualified immunity was originally established by the U.S. Supreme Court and has its origins in common law. In 1967, the justices introduced the concept of “good faith” as part of the doctrine, but they replaced that in a 1982 case. The standard now requires only proof that the defendant holds a government job requiring immunity, and that they were working that job at the time of the incident.

The Supreme Court has walked a fine line the past 50 years between balancing the rights of the public, and protecting officers who’ve sworn to defend that same public.

Pros and cons of qualified immunity

Robert McNamara, a senior attorney at the Institute for Justice, told Market Watch last June that qualified immunity is a get-out-of-jail-free card. “Qualified immunity gives government officials a rubber stamp to violate your rights, as long as they do so in a way that no one has ever thought of before.”

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Others such as the libertarian Cato Institute view qualified immunity as “fundamentally unlawful and fundamentally unjust.”

“The most straightforward and sensible solution to this problem is complete abolition of qualified immunity,” Cato Policy Analyst Jay Schweikert wrote last November.

Supporters of qualified immunity say that exposing officers to federal civil liability damages will impede recruiting efforts, which is problematic given the already low police recruitment numbers and the increasingly understaffed departments.

More importantly, it could also cause officers involved in split-second decisions to hesitate, risking their lives and the safety of others.

“The loss of this protection would have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation,” the International Association of Chiefs of Police said in the same Market Watch article.

The organization also called qualified immunity “an essential part of policing and American jurisprudence.”

Rethinking qualified immunity

Some advocates are looking for ways to reform, rather than eliminate, the doctrine of qualified immunity. Given that most of the negative incidents driving public outrage were committed by only a handful of officers, departments and communities are looking for ways to revise policies and practices, such as establishing data management systems that attach training and certification records to the work history of individual officers for greater insight and transparency.

At the national level, Congress may consider scaling qualified immunity back to limited situations where specific rights are at stake, such as Fourth Amendment concerns about the excessive use of force. Congress could also pass laws clarifying the standard and eliminating the specificity of factors constituting “clearly established” law.

Revisiting the idea that a local government cannot be sued “for an injury inflicted solely by its employees or agents” would help protect officers from financial ruin yet require accountability by the entities paying their checks. This would also place increased pressure on organizations to establish records that are legally defensible.

U.S. Sen. Cory Booker (D-NJ) may have said it best: “There’s no one singular policy change that will fix this issue tomorrow. We need an entire set of holistic reforms to improve police training and practices and ensure greater accountability and transparency.”

Posted on Mar 4, 2021