Equal Justice Requires Lawmakers Reform Qualified Immunity for Police

As he forced his knee into George Floyd’s neck, Officer Derek Chauvin appeared chillingly indifferent to both the law and the life hanging in the balance, even when Floyd cried out, “I can’t breathe.”

And why would he worry? During his 19 years with the Minneapolis Police Department, Chauvin received numerous complaints. Despite these incidents, his career continued. He never suffered the consequences that might have prevented George Floyd’s death.

The protests against police brutality triggered by Floyd’s killing are unlike anything we have seen in this country since the civil rights movement. As in the 1960s, demonstrators, and the nation, face daunting barriers to reform. Today, one such impediment is qualified immunity — a doctrine created by the US Supreme Court in 1967 to prevent frivolous litigation against government officials. It provides broad protection from civil lawsuits, including suits brought against police who violate constitutional rights. Law enforcement officers cannot be held liable for civil rights violations — including death — unless the underlying conduct “clearly” disregards the law.

But the degree of clarity that courts require to permit suits for civil rights violations to proceed is excessive to the point of absurdity. The doctrine, continually expanded by the court over time, sets far too high a bar for efforts to hold officers accountable for actions that intimidate, injure, and kill. It excuses conduct, however outrageous, merely because no prior court has ruled on the precise behavior in question.

The decision just two weeks ago by US District Court Judge Carlton W. Reeves, in Jamison v. McClendon, captured it all.

Reeves wrote that while the civil rights of the Black plaintiff, Clarence Jamison, had been violated by white Mississippi officer Nick McClendon, “Jamison’s claim cannot proceed.”

Although bound by law, Reeves was not silenced by it. He used his decision as an opportunity to highlight the failings of qualified immunity, writing, “The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity. Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog; prison guards who forced a prisoner to sleep in cells ‘covered in feces’ for days; police officers who stole over $225,000 worth of property.”

More generally, the Supreme Court’s expansive interpretation of qualified immunity leads to perverse results: Officers who violate Americans’ First Amendment right to peaceful protest can essentially immunize themselves from accountability by arresting demonstrators for disorderly conduct or resisting arrest — over-used and easily trumped-up charges. The court’s interpretation of the law undercuts civil rights protections enacted by democratically elected legislators, and it undermines efforts to demand reform. Qualified immunity incentivizes misbehavior that skirts the law. And it sends precisely the wrong message to police officers whose duty it is to serve their communities.

Now is the time for decisive legislative action.

The Supreme Court had an opportunity to review qualified immunity earlier this year and declined, despite a powerful dissent from conservative justice Clarence Thomas. The liberal justices Sonia Sotomayor and Ruth Bader Ginsburg urged the Court to reexamine the protection in 2018, writing in their dissent (from a majority decision that exonerated a police officer in a shooting) that it “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

The George Floyd Justice in Policing Act, passed by the US House of Representatives on June 25, would have ended qualified immunity for police but is languishing in the Senate.

At the state level, Massachusetts has a chance to succeed where federal lawmakers and judges have failed. The police reform bill advanced by the state Senate would limit qualified immunity under state law such that lawsuits could proceed, and officers could be made to pay for wrongdoing. Police would continue to be protected in cases where no reasonable officer would have known that the conduct in question would violate an individual’s rights. And municipalities could still choose to indemnify officers found liable in courts of law.

This approach strikes the right balance. The Senate bill would not end qualified immunity, which has value as a tightly controlled protection against frivolous lawsuits, but it would reduce perverse incentives for officers, and it would promote the accountability owed to all citizens in a constitutional democracy like ours.

Officers who know they — or their department — could be sued and forced to pay for wrongdoing would behave differently. They would think twice about using excessive force against the George Floyds of the world, who are protected by the Fourth Amendment from unreasonable searches and seizures and entitled to equal protection and due process. And officers would be less inclined to assault Americans exercising their First Amendment rights.

This nation is devoted to freedom, to combating racial discrimination, and to making government accountable to the people. Legislators today, like those who passed landmark civil rights legislation more than 50 years ago, must take a stand for equal justice under law. Shielding police misconduct offends our fundamental values and cannot be tolerated.

This op-ed was published by the Boston Globe on August 13, 2020.

Tomiko Brown-Nagin is the dean of Harvard’s Radcliffe Institute for Advanced Study and the Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School.