On Government, Police, and Qualified Immunity

These days, there’s a lot to be said for tuning out the info-noise and basking in the bliss of ignorance. Why fret over what you can’t change? There is a Judge of All the Earth,1 and it isn’t me. “Fret not”!2

And, in the daily cacophony of clashing claims, who can sort the truth out of the mess anyway, right?

Well … not exactly.

As fun as it is to imagine that we can just shut the door on it all, the Christian mind is one of inescapable tension. In one direction, we’re pulled toward resting in the sovereign power of the God who raises up and knocks down rulers (Dan 2:21) as He accomplishes His plan for His glory—a plan that can’t even be stalled, let alone defeated.3 In the other direction, we’re pulled toward loving God with our minds (Mark 12:30), bringing every exalted idea into captivity to Christ (2 Cor 10:5), and shining as lights in a dark, twisted world (Phil 2:15).

Further, as citizens in a constitutional democratic republic, we each own a piece of government power and the responsibility that goes with it. Few of us are authorized to wield the sword of justice (Rom 13:4), but we have influence. Our voices are part of the civil government.

And God takes government very seriously. Commenting on Genesis 9:6 and the context, Keil and Delitzsch put it strongly.

If murder was to be punished with death because it destroyed the image of God in man, it is evident that the infliction of the punishment was not to be left to the caprice of individuals, but belonged to those alone who represent the authority and majesty of God, i.e., the divinely appointed rulers, who for that very reason are called Elohim in Ps. 82:6. This command then laid the foundation for all civil government…4

Given the debate about policing in the US that has heated exponentially to our current level of national fury (Rodney King→Michael Brown→George Floyd), Christians should take the trouble to read up on these topics and use their influence.

The policing debate has many components. To many, the problems are “systemic racism,” rampant brutality, violation of civil liberties, and, related to that, qualified immunity. Some believe society has no need for police at all.

Those who work at improving policing, as I have for the last five years, are aware of another layer of problems. These include chronic mental and behavioral problems among officers, such as sleep deprivation, stress disorders, suicidal tendencies, and alcohol abuse. They also include increasingly complex and numerous policies and procedures (a natural result of lawsuits and caselaw over time) as well as increasingly broad expectations, such as dealing effectively with a larger de-institutionalized mentally ill population.

And they’re supposed to do it all while understaffed and, lately, with less and less money.

Imagine this dynamic: less money = fewer cops = cops are more tired = cops make more mistakes = more failures on the truly horrifying scale = more anger = less money for cops, and repeat. How could this cycle improve anything?

“Defunding” is clearly not the answer. But I want to focus here on qualified immunity. So here’s a quiet contribution to the cacophony of clashing claims.5

Qualified immunity isn’t what many think it is.

I’ve often appreciated the work of the Acton Institute, and Anthony Bradley’s recent essay6 is a thoughtful piece that makes some excellent points. This, though, was disappointing.

Principle 1: Cities should prosecute alleged perpetrators of police violence and brutality. …While this principle is complex and will not be addressed overnight, repealing qualified immunity is a great first step in holding police accountable under the rule of law. Developed in the 1960s by the Supreme Court, qualified immunity shields state actors from liability for their misconduct, even when it escalates to illegal behaviors.7

Kudos to Anthony Bradley here for using precise language, despite drawing the wrong conclusion. Qualified immunity does indeed shield “state actors.” It’s not a thing that applies only to cops. Also correct: it shields these individuals from “liability.”

What he doesn’t seem to understand, though, is that the liability in question is strictly civil liability, not criminal. That is, under certain conditions, qualified immunity shields an officer from being convicted in a civil suit and having to pay a victim a large sum of money.

There are competing narratives on the topic of qualified immunity, and some versions of the tale, heavily spun though they are,8 have become very attractive lately as we all flounder in the emotional tidal wave of the George Floyd killing. Still, some facts help clear up some of the confusion.

  • The conditions that allow for qualified immunity (QI) have accumulated through years of case law and have evolved over time.9
  • QI does not “permit excessive force.” (Force judged to have been unjustified, is not protected by QI).10
  • QI does not protect officers from criminal conviction.
  • QI doesn’t protect officers from internal discipline under department policy or community review boards.11
  • The vast majority of police activities that have prompted all this anti-QI rhetoric are cases of criminal conduct.
  • Most of the cases that have everyone angry about police seeming to get away with something have also been criminal cases.12 QI is irrelevant in these cases.
  • Police officers seeking QI in civil cases regarding violations of rights frequently lose.13

It’s probably true that QI sometimes results in officers getting away with things they shouldn’t.14 It also sometimes fails to protect officers who acted in good faith under the totality of the circumstances at the time. So it is with laws and courts—and if we replace QI with something else, similar problems will still occur.

It might be possible to improve qualified immunity.

Can QI be fixed? Maybe it can be improved.

Though QI isn’t the powerful incentive to police brutality many make it out to be, it’s possible that it contributes to a misguided attitude of “I can do whatever I want” on the part of some officers. If these officers exist, they are, like many outside the profession, not well informed.

The critics of QI do have one solid point. It’s far from ideal that the doctrine was born in the courts. Perhaps legislation could more clearly establish the liability protections officers acting in good faith need, while more clearly defining the limits on those protections.

But this is the U.S. Congress we’re talking about. They’ve been known to enact a cure that’s worse than the disease … now and then.

QI actually does what it’s supposed to do most of the time, and though there’s potential to improve it, we should probably just leave it alone.

Notes

1 Gen. 18:25, Acts 10:42.

2 Psalm 37:1-8.

3 Isaiah 46:10, Eph 1:11.

4 Keil, Carl Friedrich, and Franz Delitzsch. Commentary on the Old Testament. Vol. 1. Peabody, MA: Hendrickson, 1996. Print.

5 I mentioned this sentence, as a joke, to my “creativity advisor” who insisted that I include it in the final draft. To borrow a phrase, I don’t take responsibility at all.

6 When police get it wrong (repeatedly): The rule of law and police reform

7 My friends that I’ve never met at The Dispatch seem similarly wrongheaded on the topic: Brad Polumbo, David French. But this paywalled Morning Dispatch post has some great factual information, and looks the topic in an even-handed way. Subscribe!

8 An example: https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-hav…

9 For example, on the “clearly established law” standard, see When Is Law “Clearly Established” for Purposes of Qualified Immunity in Civil Rights Litigation? See also this and this on the “objective reasonableness” standard. These notes from one of FLETC’s courses on the topic are also insightful. On QI case law in general, see AELE’s topic page for more examples than you could possibly want to read.

10 AELE’s recent write up on Estate of Jones v. City of Martinsburg is helpful as an example of how this can play out.

11 For more on civilian oversight, see NACOLE.

12 Example: Officer found not guilty of second-degree manslaughter in the killing of Philando Castile.

13 See, for example, Cruise-Gulyas v. Minard, Ray v. Roane, Chestnut v. Wallace, and Estate of Jones v. City of Martinsburg.

14 Maybe an example: NCSL on Kislea v. Hughes.

Photo Wikimedia (CC. Resized and color-processed).

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There are 16 Comments

Bert Perry's picture

One thing that troubles me a lot is cases where the official police reports of actions--e.g. the Louisville case where a raid killed a woman--bear little or no resemblance to what really happened.  In the Breonna Taylor case, the official reports had no reference to her being injured--though she died after being shot eight times.

To me, that's the critical thing; how do we get an internal sense of accountability among police departments, one where obviously false reports of police actions are dealt with properly?  I would at least hope that "forgetting" to notice that a person was killed would merit some level of discipline by the officers involved.

And really, that's what the debate over qualified immunity is about--since the police can suppress information as in the Taylor case, you've got a situation where getting a criminal conviction of the police is going to be very difficult.  Hence many want the lower standard of proof in civil cases, and they're going to get it if police departments don't get religion on dealing well with their bad actors.

Aspiring to be a stick in the mud.

Aaron Blumer's picture

EditorAdmin

There's so much more I wanted say about what police are up against, but it was getting too long.

A vastly underappreciated factor in police performance--and errors of judgment--is sleep deprivation. And it doesn't even seem to be part of the national conversation on what's wrong with policing.

Some reads...

Sleep deprivation is dangerous. Research shows that being awake for 19 hours produces impairments comparable to having a blood alcohol concentration of .05 percent. Being awake for 24 hours is comparable to having a blood alcohol concentration of roughly .10 percent. - NIJ Journal

There aren't many surprises in these studies. What would we expect to happen to people who are chronically sleep deprived and are put in high stress situations regularly in that condition?

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

Aaron Blumer's picture

EditorAdmin

And really, that's what the debate over qualified immunity is about--since the police can suppress information as in the Taylor case, you've got a situation where getting a criminal conviction of the police is going to be very difficult.  Hence many want the lower standard of proof in civil cases, and they're going to get it if police departments don't get religion on dealing well with their bad actors.

There's a great risk here of a cure that is worse than the disease. Because of the lower standard of proof, civil cases in general are a bit infamous for blaming corporations for consumer stupidity, for example. In the case of policing, flushing QI is almost certain to result in police who are afraid to act aggressively in pretty much any situation. Might as well disarm them.

I think it's likely that various forms of civilian oversight have more potential to solve the suppressed info problem. CO can be done badly, of course... especially in communities where you have a lot of reflexive anti-police and pro-anarchy attitudes and ideologies. But in most places, if you have a use of force review process that includes some community leaders outside the police dept. eyeballing reports, it seems intuitive that this would intensify accountability in reporting.

I've read plenty of PD policy manuals that already have arrangements like these as well as strong whistle-blower protections for cops who report misconduct by other cops.

But one of the great ironies in the BLM movement is that, by frequently unfairly attacking cops, they're encouraging cops to rally to each other's defense and be even slower to report potential misconduct by fellow cops. Law of unintended consequences... though it doesn't really take much reflection to anticipate this result. Humans are defensive and social. When you sloppily and repeatedly attack the group they are part of, what are they going to do? They're going to look out for each other, which is OK to a point, but some are going to look out for each other well past what's ethical.

... and back to sleep deprivation. It's often surprising what even well-rested people don't remember. What's going to happen when a cop who is essentially a zombie writes his/her report?

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

Bert Perry's picture

All three of them failed to note shots fired and a fatality in the official report?  And it was just an accident?  And the person(s) who received the report didn't call them on it, pointing out that there was a corpse involved?  Seriously?

If one desired to impugn the credibility of the police before prospective jurors, there may be a better way, but none come to mind.  

Aspiring to be a stick in the mud.

Aaron Blumer's picture

EditorAdmin

Bert Perry wrote:

All three of them failed to note shots fired and a fatality in the official report?  And it was just an accident?  And the person(s) who received the report didn't call them on it, pointing out that there was a corpse involved?  Seriously?

If one desired to impugn the credibility of the police before prospective jurors, there may be a better way, but none come to mind.  

I wasn't referring to the particular case you mentioned. I literally don't know anything about that one.

As an approach to preventing inaccurate reporting/increasing accountability, a variety of use of force review techniques involving civilian oversight have shown promising results in various studies. And it's kind of inuitive, too. The old addage is that people don't do what's expected; they do what's inspected.

It's much better to prevent these problems (of actual misconduct/misreporting) well upstream of a court case.

The problems with dumping QI are numerous. If readers comb through some of the examples of QI protecting officers, in every single one of them the officers would have faced  a great deal of hassle without QI, for simply doing their jobs (in most cases). Often, QI allows for summary judgment and an expensive, protracted, life-and-work-disrupting court trial is avoided. So, in some of these cases, without QI, the officers would still win in court, but only after an ordeal that should not have occurred.

I'm not going to quite say that without QI we might as well defund and disband all police forces. That would depend on what replaced it. But a repeal of QI without legislation that does nearly all of the same thing... it's hard to see how the profession could survive that.

Interestingly, Canada has some kind of immunity for cops as well... with its critics, just as here. I haven't dug into Canada's version, but it's pretty logical that there are major functional problems without liability protections that allow officers to do their work without fear of lawsuits for making the best decision they could at the time with the information in their possession.

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

josh p's picture

Aaron, appreciate the info about sleep deprivation. Years back, I worked 80 hrs/week in the medical field. It was amazing how bad my cognitive functions were at times. I never really considered that angle.

Bert Perry's picture

Aaron, look up the report on Breeona Taylor.  It's appalling.  No doubt that there would be consequences, perhaps huge ones, to to an end of qualified immunity, but fact is, again, that the pressure to end it altogether will be immense if the public sees a fair number of such examples.  In the Taylor case, no less than three officers, as well as the person(s) receiving the report, failed to correct the report that missed her killing.  Put mildly, I'm having a little bit of trouble believing that the cause for all of them was sleep deprivation.

And if indeed a huge problem in getting accurate reports is sleep deprivation, understanding why would be task #1 for improving things.  Is it because a lot of officers are doing a lot of moonlighting as security guards and bar bouncers, or is it because the schedules they work are insane?  Either way, a good presentation of these issues would lead to a huge improvement if you're correct.

Aspiring to be a stick in the mud.

Dan Miller's picture

My view is that QI is a good thing. If anything, protections of this kind should be higher.

I spend 5 figures yearly on professional liability insurance. Many in my group spend more than I do. Thankfully, I have never been sued. But I was told in medical school, expect to be sued at least once in your career - many of you will be sued multiple times. 

Police officers make what? 40k - 70k per year? Functionally, if you take away QI, what will happen is that cops will have to spend a larger chunk of their salary on personal liability insurance. 

In my opinion, it would be better if the internal review process was open to the public and could be triggered by the public. And wrongdoing would result in established penalties from docking pay / loss of promotion / demotion / termination. 

-----------

Regarding "preventing inaccurate reporting/increasing accountability," why not just record everything? Bodycams. Teach them to dictate as they work and then transcribe the bodycam audio. 

Aaron Blumer's picture

EditorAdmin

I hadn't thought about insurance, and what you described seems like a very likely outcome.

With the shortage of available personnel in many locations, there's already alot of wage pressure, hiring bonuses, etc. If liability protection went away, the need for insurance would make the cost of each hire even greater, either because the employee had to afford insurance or the jurisdiction pays for it as a benefit.... Just when funds are getting much tighter in many places.

Similar issues with body cams. (We call them BWCs.) They're quite expensive because in addition to the cameras you need systems for data retention (might be evidence) and redaction (innocent people in videos have right to privacy). 

A new generation of BWC is already in use in some depts that automatically turns on when a weapon is drawn or there is rigorous physical motion. They record a 30 buffer all the time, so when an event triggers recording, it retains 30 secs retroactive from the trigger event. Clever stuff. Not cheap.

But we should defund. That'll teach em. </sarcasm >

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

dcbii's picture

EditorModerator

I also think that qualified immunity in general is a good thing.  Police officers need to be able to do their jobs without the thought of a lawsuit for something they didn't even think about hanging over them every moment.  And even if everything goes toward private liability insurance, it would be the wild west for at least the first few years as to what would be covered, what would be chargeable, etc.  Not a good thing.

As for the Breonna Taylor case, I think we should just do away with no-knock warrants on residences, period.  I can easily imagine being the husband that shot someone breaking into my house unannounced and then being arrested and prosecuted for "shooting at the police," when I had no idea it was even police to begin with.  And losing an innocent wife (or any person in the house for that matter) to a situation that never should have happened?  I can't even imagine.  That case outrages me far more than George Floyd (even though that shouldn't have happened either).

And yes, there should be almost ubiquitous use of body cams and good technology.  What would it take to make that a reality?  Wonder of wonders, funding.  Who'd a thunk it?

Dave Barnhart

Bert Perry's picture

Regarding body cams, one interesting thing that's come out of cases like the Taylor case in Louisville is that all too often, they're not being activated when it's most important that they be on.  We might wonder whether that's because of the inherent stress of situations, or because officers simply don't see the value, or worst yet, because some don't want a record of what they're doing.

Regarding no knock raids, I would at least be on-board with severely restricting them.  I've heard too many horror stories about them.  Plus, if indeed a predominant use is during drug arrests to prevent the drugs from being flushed down the toilet or otherwise destroyed, I think we need to channel our inner Andy Griffith about the matter.

Specifically, the drugs are gone, the dealer just lost a huge amount of money (perhaps owing it to a kingpin), perp knows he's on police radar, nobody's hurt, and the taxpayer's not on the hook for incarceration and trial costs.  There is a lot to like there.

Aspiring to be a stick in the mud.

dcbii's picture

EditorModerator

Bert Perry wrote:

Regarding body cams, one interesting thing that's come out of cases like the Taylor case in Louisville is that all too often, they're not being activated when it's most important that they be on.  We might wonder whether that's because of the inherent stress of situations, or because officers simply don't see the value, or worst yet, because some don't want a record of what they're doing.

I doubt that last reason happens all that often, but of course, there's no way to know.  The way to solve all those reasons would be to have the body cams already on when checked-out for the daily patrol, and either activating automatically, or always recording, with no way for the one wearing it to turn it off.  This would require tons of storage, and a lot more time of someone to go through the footage, even if you have some good AI to do the first filtering.  Again, we're talking funding.  Of course, there would be the occasional time a body cam didn't work, but if it happened too often to the same officer (and it would be reasonably doable to have sensors that check for camera abuse, etc.), that would be an indication that something needs to be dealt with on a personnel basis.

Cameras are not a perfect solution, of course.  Nothing would be perfect.  But they are a pretty easy (if expensive) way to improve policing without making officers liable for every little thing that no normal person, even a trained one, in a stressful situation would be able to get perfect every time.

As to the value of no-knock warrants, I can see that *very* occasionally, they might have some use, but as you pointed out, the horror stories of mistaken address or identity are legion, and IMHO, the value is not worth the consequences when they go wrong.  Plus, with modern chemical and forensic techniques, it wouldn't be that hard to test a toilet for the presence of illegal drugs, as it's very unlikely that every single microscopic trace would be destroyed.  Further, we're talking amounts that are larger than a single dose, but certainly not multiple bricks which would be hard to destroy quickly even after knocking and identification of the police.  The difference is only a few seconds, and I'd be willing to give up absolute evidence of a few grams of drugs to not have situations like Breonna Taylor, and the police can then focus on those with large amounts that are hard to destroy quickly.

Dave Barnhart

Bert Perry's picture

Dave, I'd like to believe that turning off body cams isn't prevalent, but a recent case in Louisville had all officers failing to record events in a situation where there were enough of them there to do riot control (McAtee killing).   Interestingly, at least one study has found that body cams don't, even when activated, do not seem to change officer behavior much.   Or, the Taylor case in Louisville had the officers not wearing body cameras at all because they went in plainclothes--which would of course have been part of  the reason her boyfriend opened fire.  

All in all, I think it's mostly a question of culture, and the key issue is you've got to persuade officers and administrators that they cannot afford to fail to take these things seriously.  

Aspiring to be a stick in the mud.

Aaron Blumer's picture

EditorAdmin

The situation with body cams is more complex than most people realize. I've read a lot of police department BWC policies, and one of the things that surprised me at first was how complex the requirements for not recording are in many places.

After some reflection, it's not surprising.

Some PDs have a policy of "always record, but with exceptions," and the exceptions are pretty numerous

  • When invited into a home to talk to victims or question potential witnesses or potential suspects
  • When entering a school
  • When entering a hospital (HIPAA)
  • Whenever anyone not actively involved in a crime asks you to stop recording them
  • Whenever you're involved in conversation with fellow employees

The list goes on.

The gist is that people have privacy rights and in some states and cities, those rights are codified in different ways. Illinois, for example, is a "two party consent" state (https://en.wikipedia.org/wiki/Illinois_wiretapping_law) which brings in a bunch of special rules many other states don't have.

None of us really wants the governments, even local government, randomly videotaping us whenever we happen to have a conversation with a cop or happen to be within the field of view of their camera while they're talking to someone else.

Anyway, point is that there are many conditions in which the BWC has to be disabled, and remembering to turn it back on again when a crisis is occurring is going to be hit and miss as long as that's the case.

Even without speculating (and that's all that can ever be) about motives, there are clear functional challenges with the enabling and disabling of BWCs.

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

Aaron Blumer's picture

EditorAdmin

Some of you may find this interesting: https://www.theiacp.org/news/blog-post/iacp-statement-on-misguided-appro...

An excerpt

As elected officials, police leaders, and community members work to develop and implement solutions regarding concerns over policing practices and operations, it is imperative that these efforts reflect a balanced, strategic approach to combating crime and prioritizing community safety.

Unfortunately, too many states and cities, large and small, across the United States are hastily and, without proper forethought, implementing stark measures that do not get to the core of enhancing community-police engagement. Further, while politically expedient, these misguided and shortsighted measures will likely have adverse, negative impacts for years to come.

I'm among those who believe police reform was already mostly on the right track and needed to stay the course. What's happening so far lately is going to actually set it back quite a bit. It's another example of how our culture's politicization of everything is preventing or reversing actual progress in solving problems.

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

Aaron Blumer's picture

EditorAdmin

To Dan's point  about liability. Just saw this...

Liability insurance mandate for police officers under consideration by state leaders

Edit to add: There's a bill in Congress to end QI. It doesn't have much backing, but illustrates the thinking behind it. The language of the bill reflects a lack of awareness of the issues that even reading the handful of cases I linked in my footnotes would go far to remedy. The bill... https://www.congress.gov/bill/116th-congress/senate-bill/4142/text?q=%7B...

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

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