Let me start this post on qualified immunity and related matters by stipulating that in order to effectively respond to rapidly evolving situations, police should not need to fear criminal charges for reasonable good-faith actions taken in the course of their work. In support of this goal, qualified immunity is judicial (not legislative) doctrine from the late 1960s that has evolved to bar civil rights suits for unconstitutional conduct unless it had been “clearly established” (i.e., by legal precedent) as being illegal at the time it occurred. The present concern with qualified immunity is that in seeking legal precedent, clear violations of civil rights might be precluded from reaching trial because there did not exist a clear precedent at the time the doctrine of qualified immunity was established, thus the case can never be heard and no legal precedent can ever be established. Opponents further assert that requirements for precedent are being sought on overly narrow grounds in practice, and have had the effect of preventing morally justifiable cases from even being filed.
As this appears to be a situation where an absence of law has caused the courts to effectively "legislate from the bench," we should all welcome legislative clarity. There does seem to be some anecdotal evidence the critics of qualified immunity have a point. And, since few officers are also case law experts, it seems that existence of precedent is a poor basis for making split-second decisions in policing. I am of the opinion that qualified immunity should be more restricted than it is. The proposed Ending Qualified Immunity Act in the US House of Representatives provides no protection for reasonable acts done in good faith. I think it goes too far. I am much more partial to the Massachusetts Senate proposal (the "Reform, Shift + Build Act"), which retains qualified immunity but places the burden on the state to demonstrate qualified immunity applies.
Regardless of the status of qualified immunity, for an officer to be found guilty of an offense in a court of law requires at least a preponderance of evidence (for civil cases) -- and more for criminal cases. It must also generally be the case that internal warnings and disciplinary actions are independent of legal findings of liability, or police departments should be able to act to prevent future misconduct. To the extent that labor agreements and other mechanisms limit the ability of municipalities to act without meeting that high legal standard for burden of proof, they abuse the public trust.
Also, because of qualified immunity and standards of evidence, it it follows that if in aggregate a community is aggrieved by police misconduct, then in order to properly protect accused police officers, some degree of injustice against the aggrieved group will go unpunished and in fact unrecognized. I know of no precedent for addressing such grievances, but it is worth considering that their historical and ongoing weight should be addressed. Perhaps this could be considered as a form of reparations -- as noted, I do not know of a precedent here, but the cumulative sense of injustice ought to be recognized even if individual guilt cannot be proven in a court of law.
These are thorny, detailed questions. But they are critically important and must be addressed. Though no bill will satisfy all parties, I am hopeful that the Massachusetts legislature will be successful in crafting a reform bill before ending the current session.
1 comment:
This is timely. I assume you've seen yesterday's decision by Judge Reeves excoriating qualified immunity?
https://www.documentcloud.org/documents/7013933-Jamison-v-McClendon.html
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No, Clarence Jamison was a Black man driving a Mercedes
convertible.
As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.
Nothing was found. Jamison isn’t a drug courier. He’s a welder.
Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing. So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.
Thankfully, Jamison left the stop with his life. Too many others have not.
The Constitution says everyone is entitled to equal protection of the law – even at the hands of law enforcement. Over the decades, however, judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called “qualified immunity.” In real life it operates like absolute immunity.
In a recent qualified immunity case, the Fourth Circuit wrote:
“Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives.”
This Court agrees. Tragically, thousands have died at the hands of law enforcement over the years, and the death toll continues to rise. Countless more have suffered from other forms of abuse and misconduct by police. Qualified immunity has served as a shield for these officers, protecting them from accountability.
This Court is required to apply the law as stated by the Supreme Court. Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal
is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.
But let us not be fooled by legal jargon. Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.
As the Fourth Circuit concluded, “This has to stop.”
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