Qualified immunity is pure judicial cancer. This fact cannot be ignored. What began as a limited defense for decisions made in the heat of the moment has become the de facto response to civil rights lawsuits. The Supreme Court -- which conjured this new Section 1983 ejection seat out of thin air -- has only made it worse over the past few decades.
Qualified immunity is more bulletproof than the Kevlar vests worn by those who summon its protections most frequently. Efforts have been made to dial this back, but so far, we’ve yet to see them come to fruition.
Attempts to remove qualified immunity have faced massive amounts of opposition from some of the most powerful entities in the United States: law enforcement agencies and their unions. Despite this, efforts continue to be made to rein in something that has pretty much become a permission slip for rights violations.
The good news (via MagentaRocks) is that one ongoing effort to end immunity targets the largest law enforcement agency in the nation: the New York City Police Department. This package of reforms offers up some other useful changes, like requiring NYPD officers to live in the city and mandating quarterly reports on vehicle stops, broken down by ethnicity, race, and age. It also would strip the police commissioner of final say on cases recommended for discipline by the Civilian Complaint Review Board. This would prevent CCRB recommendations from being overturned by the NYPD, something that has happened with alarming frequency in the past.
But here’s the big news: the end of qualified immunity for NYPD officers.
Sponsored by Brooklyn Councilman Stephen Levin, Intro. 2220-A ends qualified immunity for police officers, which gives officers an exemption for civil lawsuits unless proven by the plaintiff that the officer’s action directly violated civil rights.
The council’s legislation gives “a local right of security against unreasonable search and seizure,” in addition to excessive force.
Of course, this would be limited to cases handled solely by New York City courts. Federal civil rights lawsuits wouldn’t be affected by this removal. Nor would cases handled by state courts. So, it will only affect a small number of lawsuits pursued entirely within the city’s court system.
Since city lawmakers are limited to crafting laws that affect the city, this is the best they can do. It’s better than doing nothing and it will help, even if it’s severely limited. And the bill still needs to be signed by Mayor Bill de Blasio, who has offered his support for some police reforms, but hasn’t exactly shown he’s willing to take on the NYPD during his tenure in office.
It’s a very small (but positive) change. But as small as it is, it’s not small enough to keep the city’s law enforcement unions from complaining about it.
The city’s police unions have vocally opposed the bill, saying ending qualified immunity could have a chilling effect on officer’s willingness to insert themselves into complex and dangerous situations to enforce the law.
I don’t think that’s true. Good officers will still insert themselves into these situations. Officers who like to play fast and loose with rights and civil liberties may choose to sit some of these situations out. Qualified immunity hasn’t given us better, smarter cops. It has encouraged abusive behavior by giving officers a litigation escape hatch -- one that’s rarely denied by courts.