Where to Start?
Meaningful police reform. What does it entail? There is no single answer, no one-step solution. Problems are long-standing and cumulative. It will involve systemic changes and a change of culture. Serious problems exist in policing in our country, and serious steps must be taken. Such an undertaking is daunting and will take time. However, one change is simple and would cover the entire country: meaningful police reform starts with ending qualified immunity.
Qualified Immunity Aids Violence
Police officers are rarely criminally charged for violating people’s rights. People are left to their own devices to protect their rights, which means filing lawsuits. Regretfully, the Supreme Court ended that ability. Rather than promoting justice, the Supreme Court left people with no way to protect themselves from violent police.
In its current form, the doctrine effectively eliminates lawsuits against police for their misconduct. No matter how egregious or violent, Qualified Immunity prevents victims from successfully suing police who violate their rights. Frequently, police face no real consequence for violating people’s rights. Police have little to fear for misbehaving and act accordingly.
This concept was never passed as a law in the United States. Instead, in 1967, the United States Supreme Court wrongly created the defense. It didn’t exist and never should have happened, in my opinion. The original doctrine has only become more stringently in favor of police. Congress’ silence since then makes it complicit in continuing this unjust doctrine. It is far past time to end it.
Police Accountability is Essential
Accountability must be central to any police reform. People outside the legal system may never have considered how civil lawsuits can affect behavior. Lawsuits often lead to major improvements in public safety and health.
Consider, for example, if a car manufacturer chose to squeeze a few more dollars in profit by taking short cuts in production, and the resulting cars were more dangerous. People could die because of that decision. The promise of a lawsuit costing many times those extra profits is a significant deterrent to producing a more dangerous car.
The same is true of governmental entities. A city which produces a police force which violates people’s rights and is unnecessarily violent, they should be held accountable by paying dearly for it. Cities would be far more motivated to institute meaningful police reform.
Abuses Cannot be Tolerated
Qualified Immunity provides a protection for abusive police or other government actors who violate people’s rights. In practice, it has effectively become absolute immunity for police, giving them cover for even the most gruesome and insidious abuse.
One federal trial judge recently made news by highlighting the inequity of Qualified Immunity. He followed Supreme Court precedence, but in the process made it clear Qualified Immunity was unjust and wrong. He openly called on the Supreme Court to revisit and reconsider Qualified Immunity. His ruling describes the asinine application of facts to a legal doctrine so circular in reasoning there is no way to escape applying it to the benefit of police, even when police obviously violate people’s rights. You can read a summary of the case and even read the entire ruling here.
Don’t Count on the Supreme Court
The Supreme Court rarely reverses itself. Even in 2020, Qualified Immunity could’ve been eliminated, but the Supreme Court refused to hear pending cases. As an institution, it is unlikely to acknowledge its own mistakes. When it does, it typically creates a change so important, pivotal national history is made. While it is possible the Supreme Court will correct itself, there’s no reason to wait and hope for it.
Congress Should Act Now
Congress has the power to literally undo what the Supreme Court did. Qualified Immunity does not implicate any Constitutional rights. It is strictly legislation, and legislation is completely within the purview of Congress.
To that end, there are two pending bills in Congress. One would end Qualified Immunity entirely. Another would alter how it works. Either would be an improvement. Clearly ending Qualified Immunity is preferable. It would restore meaning to our rights against government infringement and give us a way to enforce them.
Ending Qualified Immunity is the best, first step to holding police nationwide accountable. It will provide a meaningful consequence for violating people’s rights. The change is as simple as passing a law saying Qualified Immunity can no longer be used. It cannot happen too soon.