America’s legal system has afforded government officials at various levels with absolute and qualified immunity protections in recognition of the risks associated with their roles and responsibilities.  Although qualified immunity is available to many state and local government workers, law enforcement officers rely on qualified immunity as they make life or death decisions in everyday encounters as well as in crisis situations without the benefit of hindsight. Qualified immunity was not meant to relieve officers or their agencies from the duty and responsibility to act within the law, but does address the unique context in which they must act.

The intense debate over qualified immunity protections for police and the difficulty in resolving it stem from a broader crisis of trust and the need for accountability.

Not unlike other issues, the debate is made more complicated and challenging by the fact that not all who are engaged in the debate have been afforded a full understanding of the doctrine or the realities of government employees’ exposure to liability, potential for indemnification, and accountability outcomes; and, little research exists, leaving a vacuum to be filled, often without full or complete facts.

Some Facts About Qualified Immunity & Accountability

Qualified immunity—lesser than “absolute immunity” afforded to judges, prosecutors, jurors, and others—is offered to local government employees, including police officers, who are acting in the performance of their duties. Although a “weaker” protection than that provided to prosecutors and judges, the protection is offered to a broader group of government employees holding positions that may expose them to significant risk of litigation.

Qualified immunity does not prohibit lawsuits against police officers or their employers, but this type of litigation has become more difficult because of the way courts have interpreted and applied the protections, including how the courts have defined “clearly established law.”

An officer who violates the rights of any individual with full knowledge that their actions violate those rights can be held liable if the accuser can demonstrate—to a substantial degree—that the officer would have known that his or her actions would be a violation of “clearly established law.” While some plaintiffs have prevailed, in most cases this test has not been met and the result is a level of protection arguably closer to what many could interpret as an absolute immunity.

Qualified immunity doctrine shields officials from liability in cases where the actions of the official did not violate “clearly established law.” On the surface, this is reasonable. But, consistent with the observations of the Major Cities Chiefs Association[1], clearly established law is defined by the courts quite rigidly, essentially requiring that the same act had been committed previously within the same judicial circuit and found to be unlawful. The odds of two events being nearly identical and adjudicated within the same circuit are not strong and thus a more objective standard may be desirable in these situations.

Research has demonstrated that in cases where officers were found liable, the government nearly always pays the judgement or indemnifies the officer(s)[2]. There have been cases where officers have been found personally liable and have been required to pay but the amounts are often limited.[3] This is not entirely surprising given that police officers across the U.S. are not typically high wage earners, with many earning less than $39,130 annually and a median annual wage of $67,290 nationally[4]. Employers will have the resources to pay more substantial judgements that officers and other state and local government employees generally do not. Coupled with the loss of an officer’s job and future retirement benefits, the combined impact is substantial and both the agency and the officer face the consequences of unlawful actions.

Smart Change is Possible

Though qualified immunity doctrine was created within the courts as opposed to enacted through legislation, the opportunity and need exist to consider qualified immunity, without eliminating appropriate protections for difficult jobs and encounters that expose government officials—including police officers—to litigation, even in the absence of malice or malfeasance. The following may provide opportunities to enhance accountability and provide justice:

Agencies are Shielded

The Monell doctrine shields municipal government agencies (as opposed to states) from liability in situations involving actions that did not stem directly from an official policy or standard practice of the agency. Reconsideration of the Monell doctrine could allow government agencies to be more responsible for the actions of their employees while acting within the duties and responsibilities of their positions without the need to demonstrate that the actions were a direct result of an agency’s policy or a custom that has the force of law, including, for example, the failure to train. Many egregious acts may well fall outside of these domains. Removing the Monell doctrine’s barrier to agency accountability is an idea called for by some legal scholars and civil rights and policing experts[5][6].

Research indicates that governments pay judgements typically from outside of the affected agency’s budget[7] and thus the agency that is most directly responsible for the actions of its employees remains relatively unscathed by monetary judgements. A more precise and possibly more effective accountability measure as noted in research[8], would involve paying judgements in whole or in part from the agency budget as opposed to the local government’s general budget or from special funds within the government’s budget or by relying on special funds. When the payment has more of a direct impact on or creates an incentive within the budget of the involved agency, agencies may be more likely to focus greater attention to risk management through changes in policy, procedure, and training—and doing so more proactively. By focusing here, as opposed to focusing on the individual officer(s), the results may be much more likely to prevent future harms (the ultimate goal) by causing change at the agency or workforce level. This approach is clearly preferable as a deterrence measure and would require substantial study and monitoring of budget allocations, planning, and adjustments to ensure that this approach achieves the purpose(s) intended without sacrificing critical public safety services, creating unintended consequences or being offset by adjustments. Considering incentives for taking steps that result in reduced litigation costs has also been raised as an option that may be well worth considering[9].

Accountability and Justice

Holding state and local government agencies more accountable for the actions of their employees could also be accomplished by requiring agencies to indemnify officers (as some currently do) or by developing or engaging in private insurance arrangements[10]. Research suggests that these measures could offer improvements in agency accountability and greater attention to risk management. More specifically, such a focus may include reviews of policy, procedure, and training, as well as hiring and disciplinary practices, that could have far greater implications and impact than a judgement against a single officer or even a group of officers.[11]

Agencies have a duty to select those most capable of performing and to prepare them for critical situations. By doing so, they can prevent harm much more broadly and effectively than an individual officer is capable of providing, regardless of the accountability they face.

Leverage Science

Very little research and data is available to inform this debate and the broader debate about how best to enhance organizational accountability. The federal government’s funding for research and statistics must prioritize this issue to inform future debates and changes.

 

[1] Major Cities Chiefs Association. (2021, May 6). MAJOR CITIES CHIEFS ASSOCIATION Qualified Immunity Reform Policy Statement. https://majorcitieschiefs.com/wp-content/uploads/2021/05/MCCA-Qualified-Immunity-Reform-Policy-Statement.pdf.

[2] Schwartz, J. C. (2014). Police Indemnification. New York University Law Review, 89, 885–1001.

[3] Ibid.

[4] Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Police and Detectives,
at https://www.bls.gov/ooh/protective-service/police-and-detectives.htm (visited June 09, 2021).

[5] Schuck, P. H. (2020, June 24). The Other Police Immunity Problem. The Wall Street Journal. https://www.wsj.com/articles/the-other-police-immunity-problem-11593039526.

[6] Lopez, C. E. (2021, May 4). Limiting police officers’ qualified immunity isn’t the only change needed to achieve real police reform. The Washington Post. https://www.washingtonpost.com/opinions/2021/05/04/limiting-police-officers-qualified-immunity-isnt-only-change-needed-achieve-real-police-reform/.

[7] Schwartz, Joanna C., How Governments Pay: Lawsuits, Budgets, and Police Reform (July 24, 2015). 63 UCLA L. Rev. 1144 (2016), UCLA School of Law Research Paper No. 15-23, Available at SSRN: https://ssrn.com/abstract=2635673

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Schwartz, J. C. (2014). Police Indemnification. New York University Law Review, 89, 885–1001.