Both the police and the public will benefit from ending qualified immunity
One Saturday night, I was standing on a police line protecting the St. John’s Church in Washington, D.C., about two months after the George Floyd rallies began. I tried engaging in a conversation with a young man who was sitting on the jersey walls. He looked at me and asked: “What is it going to take for y’all to stop protecting bad apples? If I were to kill someone, I would be held accountable, no questions asked. Why do officers get all these chances? I don’t know if our community will ever be able to trust you all.”
He got up and walked away before I could respond. But if I had a chance to respond, I would have told him honestly that I know we aren’t held as accountable as we should be, and I know we won’t have the trust of our communities until we are. And that, in large part, the reason we’re not held as accountable is because of qualified immunity.
Qualified immunity is an obscure legal principle that requires courts to dismiss civil cases against government agents, including police, if there is not a “clearly established” precedent. In practice, this means that unless a scenario has played out exactly the same as in a prior case, officers who violate an individual’s rights cannot be held responsible, even though the court determines they have violated a person’s constitutional rights. In fact, the only time qualified immunity shields officers is when they have been found to have violated someone’s rights. Even in the most egregious cases resulting in death or debilitating bodily harm, officers are shielded from civil liability and survivors cannot seek justice, leading to a perception that police are above the law.
The reality is that we police don’t need qualified immunity to protect ourselves or the communities we serve. There are already adequate safeguards against personal liability in place. In 2014, an article in New York University Law Review revealed that departments, not individual officers, were held liable in 99.8 percent of claims. Ending qualified immunity will not change this practice. Officers will not be bankrupted by settlements; ending qualified immunity would simply allow more victims or their families to receive restitution and give agencies more financial incentive to ensure the officers they put on the street respect the rights of those they serve.
Our Constitution was written as a check on the power of the state and to ensure that everyone’s civil rights would be protected by law — we must be able to hold law enforcement accountable. Without accountability, there can be no trust, and a system without trust is an unsafe system for officers and communities alike. Trusting relationships between police and civilians are not just a preference in public safety: they are a requirement.
If that conversation on the jersey walls had happened today, I would have told that individual about the states like Colorado, which passed the Enhance Law Enforcement Integrity Act last year to protect Coloradans and has not led to a mass exodus in policing in spite of critics claiming otherwise. New Mexico similarly took action to ban qualified immunity. California is currently working to pass Senate Bill 2 to protect Californian’s civil rights and liberties. And in my hometown, the District of Columbia, Congress is working to pass the Ending Qualified Immunity Act of 2021.
I took an oath to protect and serve my community, and part of doing so is listening to my constituents and advocating on their behalf. Ending qualified immunity is the best path forward for both law enforcement and the public; doing so will allow judges to hear the most grievous cases without endangering police officers. Ultimately, we cannot have meaningful reform without ending qualified immunity. Doing so would better equip local courts to hold government employees accountable when they violate a person’s constitutional rights. Removing these barriers to police accountability is central to public safety.
Evan Douglas was a patrol officer with the Metropolitan Police Department in Washington, D.C. from 2016-2021. He is currently a Policy and Advocacy fellow with the DC Justice Lab. He is a speaker with the Law Enforcement Action Partnership, a nonprofit group of police, prosecutors, judges and other criminal justice officials who want to improve the criminal justice system to make our communities safer and more just.