Police Accountability Is a “Non-Starter” Without Discarding the Qualified Immunity Doctrine

COUNTERPUNCH,  Ben Rosenfeld, February 13, 2023

Contrary to what Qualified Immunity’s defenders claim, it in no way helps police ‘do their jobs.’ It simply helps them get away with violating people’s civil rights.

Some reps in Congress assert that dismantling qualified immunity (“QI”)—a police officer’s so-called good faith defense to a civil rights lawsuit—is a “non-starter” in negotiations to pass the George Floyd Civil Rights Act. In reality, meaningful police accountability is a non-starter without discarding QI.

QI is a regressive framework which has turned federal civil rights lawsuits into sheer games of chance with bad odds. Under QI, the Supreme Court instructs judges to apply a two-pronged analysis, in a specific order: first to examine whether the right sought to be vindicated was clearly-established at the time, and second to examine whether the officer reasonably could have believed his/her conduct was lawful. But if the judge finds that the right was not clearly-established, the case is over; the judge dismisses it without ever examining whether the officer acted unreasonably. As a result, dismissed cases do not add to the body of clearly-established rights so as to protect even future victims of police abuse. Rather, police can repeat the same rights violations ad infinitum without civil rights law ever advancing.

QI is standardless. There is no reliable test for deciding the “level of particularity” with which a judge should examine the facts of a case in order to determine whether they occurred in a prior case amounting to a “clearly-established” right. As a result, QI invites judges to substitute their subjective attitudes for a jury’s determination whether rights have been violated, producing wildly contradictory results. A judge inclined to dismiss a case can examine its facts granularly and rule that there is no prior case on point; ergo, the right is not clearly-established. A judge inclined to help a case along can look at the facts more generally, and rule that the right is clearly-established. In practice, crowded courts grant qualified immunity in the vast majority of cases simply because they can, and because the judiciary slants pro-law enforcement.