John McClaughry: Qualified immunity and police unionization

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The pressure is on, in Washington and Montpelier, to take far-reaching (and long overdue) action to insofar as possible prevent future police-citizen interactions of the sort that led to the death of George Floyd in Minneapolis.

Last Wednesday in Washington, Senate Democrats mustered 45 votes to prevent even consideration of a reform bill. That produced the familiar partisan gridlock that will likely prevent any reform action until after the November election.

In Vermont, legislators are agreed on mandating police use of body cameras, banning potentially lethal suspect control techniques like chokeholds, and creating a better guide to use of force by police.

Two large issues, however, remain hotly controversial: qualified immunity and police unionization. A third related issue is aggressive police enforcement of illegal possession of small amounts of controlled drugs. George Floyd had previously been found guilty and did jail time for four low level drug offenses, three of them involving a gram or less of cocaine.

As part of the Civil Rights Act of 1871, the Republican Reconstruction Congress allowed individuals (notably freedmen) to sue state and local officials, including police officers, who violated their rights. In 1967 the Supreme Court invented the doctrine of qualified immunity. Under this doctrine, police are held immune from liability unless the person whose rights they violated can show that there is a previous case in the same jurisdiction, involving the exact same facts, in which a court "clearly established" that the actions violated the constitution. That condition drastically reduced the chances of police officers being found liable for any violation of rights.

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In 2009, reports Reason's Jacob Sullum, the Supreme Court held that federal courts can dismiss lawsuits against cops without even deciding whether they violated the plaintiff's rights. Today, overcoming the qualified immunity roadblock has become increasingly difficult.

This term the Supreme Courts received a bunch of petitions that provided an opportunity to revisit that doctrine. Sullum reports that "The defendants in those cases include police officers who shot a 10-year-old boy while trying to kill his dog; wrecked a woman's home by bombarding it with tear gas grenades after she agreed to let the cops inside so they could arrest her former boyfriend; knocked out a woman and broke her collarbone by lifting her up and throwing her to the ground while responding to an erroneous report that she had been the victim of a domestic assault; and sicced a police dog on a burglary suspect who said he had already surrendered and was sitting on the ground with his hands up."

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Unfortunately, the court, over Justice Thomas's protest, declined to hear any of the cases seeking modification of the qualified immunity doctrine.

On a more hopeful note, on June 9 the 4th Circuit Court of Appeals ruled that the trial of five West Virginia police officers could go forward. In 2013 the officers shot a schizophrenic homeless man 22 times after stopping him for walking in the street instead of on the sidewalk.

But here's the dilemma. Cops regularly put their lives on the line to protect and serve, in a rough world of criminals committing antisocial, violent and destructive acts. It's a risky and demanding profession, and society owes its law enforcers some benefit of the doubt in dealing with situations that threaten the lives and property of citizens, as well of the officers themselves.

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Further, it's not possible to imagine and make detailed rules for handling an infinite variety of dangerous confrontations. Nonetheless, a code specifying what sorts of behaviors are out of bounds, intense and continuing training of officers to stay within that boundary, and instilling an awareness of where going too far will deprive an officer of the qualified immunity shield , are important ingredients of a solution. Merely making officers and departments liable for unspecified "egregious violations" is not enough.

The other huge problem centers upon the political dynamics of a police union. Unions are created to negotiate for salaries, benefits and working conditions. But an important concern of the union is to defend its members against charges of misbehavior, and minimizing troublesome outside review of a department's practices, which laymen cannot be expected to fully understand. If there are going to be police unions — that's another question — they must come to be alert to what their members do, work to straighten them out where they cross the line, and ultimately discipline irresponsible officers in the union itself.

This will be a bitter pill for many police unions to swallow; but on the other hand, purging bad cops ought to ease the consciences of the responsible union members who cherish the respect the citizens owe them for good service. It would also preserve the reputation of law enforcement in the society that relies upon that profession for public order and safety.

John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org).


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