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.