Five myths about qualified immunity

Nancy La Vigne is the executive director of the Task Force on Policing at the Council on Criminal Justice. Marc Levin is the organization’s chief policy counsel.

The George Floyd Justice in Policing Act, passed by the House in March, faces opposition in the Senate because of a provision to eliminate a legal doctrine called “qualified immunity.”Critics say it shields police officers from personal liability for their actions, while supporters call it essential to officers’ ability to do their job. There are strong arguments for and against qualified immunity, but its implications for police accountability are complex and poorly understood.

Myth No. 1: Qualified immunity lets officers off the hook.

A segment on Sam Seder’s show, “The Majority Report,” was titled “Qualified Immunity: Cops’ License To Kill.” The New Mexico ACLU describes qualified immunity as a “blank check” for police misconduct.

Qualified immunity does protect officers from being sued, but it has no bearing on criminal prosecution. Police officers who use excessive force, though, often escape criminal charges or avoid conviction. An analysis of a database of officer arrests and convictions finds that 44 percent of on-duty officers arrested on murder or non-negligent manslaughter charges in 2015 were convicted. This relatively low conviction rate — substantially below the 70 percent rate for all felony murder charges nationwide — is what makes qualified immunity such a contentious topic.

Without criminal prosecution, people who are injured or killed by police, or the families of those victims, often resort to civil litigation to seek justice. Yet there have been numerous cases in which a plaintiff was seriously injured or killed as a result of police misconduct but could not recover damages because of qualified immunity. For plaintiffs to prevail, they must show that the specific nature of their civil rights violation was “clearly established” in a prior court ruling. For example, the Supreme Court threw out a case last year in which a man sought damages after an officer ordered a police dog to attack him, even though he had surrendered and was seated with his arms in the air. The plaintiff in the case, Baxter v. Bracey, was unable to point to a prior case with similar facts.

Myth No. 2: Ending qualified immunity would cause a flood of lawsuits.

“We’re just going to have hundreds and hundreds of lawsuits, and we’re going to hire an army of lawyers,” Sen. Marco Rubio (R-Fla.) predicts. A New Jersey lawmaker cautions that eliminating qualified immunity “would encourage a flood of lawsuits not just against individual officers, but against towns and police departments as well.” Then-Deputy Attorney General Jeffrey A. Rosen, writing in the New York Post in September, argued that ending qualified immunity would “impose heavy financial burdens on courts and taxpayers.”

Data tells a different story. The doctrine is not applied in civil suits all that often. An extensive study of more than 1,000 cases filed against law enforcement agencies in five judicial districts found that qualified immunity was raised in 37.6 percent of eligible lawsuits. Of those, only 30 percent were dismissed solely on the grounds of qualified immunity. While it is conceivable that defense attorneys turn down some share of cases because they think a qualified-immunity motion would make the case vulnerable to dismissal, a survey of lawyers found that they do not routinely decline cases for that reason. This reflects the high bar for successful civil litigation, which requires the injured party to show that an officer intentionally violated their constitutional and civil rights. Thus, even without qualified immunity, the volume of cases is likely to remain low.

Myth No. 3: Local governments could go bankrupt without qualified immunity.

A Michigan sheriff said eliminating qualified immunity “could potentially bankrupt some municipalities.” A Virginia sheriff claimed it would increase awards to plaintiffs, with taxpayers bearing the costs.

Moreover, insurance policies offer municipalities protection, both in suits directly against the local government and those in which the agency indemnifies its officers. Such policies, which are already common among all but the largest police departments, allow risk to be spread and make municipal bankruptcies highly unlikely.

Myth No. 4: Without qualified immunity, officers would quit the profession.

“If they start stripping qualified immunity, I think you’re gonna find a mass exodus of officers leaving the job,” a New Hampshire sheriff warned. The district attorney in Orange County, N.Y.,predicted the same. Police union officials in Texas argued that officers would quit in droves if proposed state legislation that rolls back qualified immunity were to pass. “I don’t know how we get anybody to be a police officer” without the doctrine, said Senate Minority Leader Mitch McConnell, R-Ky.

But surveys of police officers reveal that the threat of litigation is not front of mind in the course of their duties. One study of municipal officers found that for 95 percent of them, the threat of litigation didn’t make their “top 10 thoughts” when on the job, and in another survey just 22 percent of officers said they were cognizant of the threat of being sued during encounters with members of the public. That stands to reason, because damages and legal fees are paid for by their government employers - what’s called indemnification. In fact, one study found that governments indemnified almost all officers, with 99.98 percent of the dollars recovered by plaintiffs in lawsuits paid by governments, even when the officers were fired, disciplined or criminally prosecuted.

Myth No. 5: Fear of litigation will prevent police brutality.

A Green Party document appears to blame all police brutality on qualified immunity, stating, “Police act this way because they know their actions are protected by qualified immunity.” A Guardian column suggested that ending the practice “might save the next George Floyd.” An Ohio state representative said that without qualified immunity, officers might “think twice” about their actions.

These statements are based on the false assumption that removing qualified immunity would create financial burdens on officers significant enough to change their behavior. But since most officers are indemnified by their employers, eliminating qualified immunity alone is unlikely to have a big impact. On the other hand, revising the Monell standard to make municipalities liable when their police departments fail to provide proper training or enforce officer accountability could more directly reduce the sort of incidents that prompt legal action.

If law enforcement agencies were incentivized to adopt practices that reduce excessive use of force, as recommended by our independent Task Force on Policing, the number of suits against them could decline.

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