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Congress Needs to Fix Qualified Immunity—Here’s Why

June 30, 2022, 8:00 AM

It sounds like the start of a bad knock-knock joke: A bed and breakfast owner and a federal agent run into each other at an inn on the northern border. But what happened next is far from humorous.

Robert Boule, the owner of Smuggler’s Inn on the Canadian-US border in Washington, sued a US Border Patrol agent for violating his Fourth Amendment right by entering his home and using excessive force against him. Boule alleged the border agent pushed him to the ground during a dispute and then retaliated by reporting him to the IRS after he complained to the agent’s supervisors.

The US Supreme Court ruled against Boule on June 8, holding that his case did not fall under the 1971 precedent Bivens v. Six Unknown Fed. Narcotics Agents. In its ruling, SCOTUS effectively concluded that federal courts no longer have the right to decide on border police liability, but instead should defer to Congress.

Without congressional action, federal agents may no longer be liable for their actions, no matter how violent. Why? The doctrine of qualified immunity for law enforcement.

As a former public defender and now executive director and co-founder of Partners for Justice, a nonprofit that works to help low-income Americans navigate the legal system by bolstering public defense resources, I have seen first hand the consequences of law enforcement behaving as if they are the law. A child assaulted by a school cop while the school’s video surveillance mysteriously cut out. A young man having his face driven by a police officer into the street for carrying a screwdriver.

The police violence that we hear about in the news is occasional—the police violence that communities of color endure every day is not. It is constant, lethal, and uniquely American.

Other Professions Face Consequences

In no other field are professionals shielded from the worst consequences of their occupational mishaps. If a doctor botches a procedure, they are liable for malpractice. If I, as a lawyer, fail to investigate my client’s claims, I could lose my license and be subject to liability. But if police (and now federal agents) use excessive force, they are largely shielded from any public recourse.

Imagine the shock and outrage that would erupt if nurses killed 1,055 civilians in one year—the number of civilians killed by law enforcement in the U.S. in 2020. Yet—despite the crescendo of voices arguing against qualified immunity after George Floyd’s murder in 2020—our courts persist in creating a consequence-free zone for some of our nation’s most lethal professionals.

Law enforcement is no longer an emergency response mechanism, but more of an omnipresent, all-purpose force, summoned for everything from excessive noise to mental health crises to school misbehavior. This puts the public at much greater risk from the police—who are everywhere, doing everything, including things they are not trained (social work, mental health, etc.)

Unfortunately when brute force and imprisoning people in desolate locked spaces are the main tools for carrying out cops’ jobs, the outcome is (predictably) more harm.

The smartest pro-safety solution would be for legislatures to invest in communities’ needs that foster safety, such as housing, access to medical care or building out public defense as a broader resource to aid people whose lives are dismantled by our criminal system. But that doesn’t mean we can’t still push for lawmakers to take the most modest step in the right direction: ending qualified immunity.

The Boule decision isn’t ideologically unique—it’s just a depressing reminder of how expansive law enforcement immunity really is (plus a spotlight on the horror that is our Constitution-free border zone). The Supreme Court has continually kicked rulings on qualified immunity to the legislature, building precedents for protecting law enforcement at the expense of the American people (with a pair of such rulings just last year in City of Tahlequah v. Bond and Rivas-Villegas v. Cortesluna.)

In a world where Democrats control the Senate only on paper and fact-free crime hysteria is on the rise, it’s easy to feel SCOTUS’s abandonment of the individual is the end of the road. But in fact, there may still be hope.

Holding Police Accountable

While we wait for Congress to break the Washington deadlock, there are other system actors who can hold police accountable in court and play important roles—prosecutors and public defenders.

Prosecutors can use “do-not-call” lists, which are lists of police officers to no longer call to testify in court because those officers aren’t credible witnesses. This disengages bad cops from courthouse power.

Meanwhile, public defenders can also help. They serve around 80% of accused people and stand as a last bulwark between ordinary people and law enforcement overreach. Public defenders also are often the only legal-system actors present and able to help at moments of peak crisis.

And some local leaders across the country are making strides, with tangible impacts. In Delaware County, Pa., for example, dynamic new leaders in the public defender’s office identified the need for change, and by reimagining the role of their office, they have made it a community haven for holistic support, rather than just a space for legal counsel.

Unfortunately, public defender offices continue to be chronically underfunded at all levels of government. For example, the latest numbers show that California recently proposed budgeting 82% more resources to prosecutors than public defenders—and this was in a progressive stronghold.

Until our elected officials realize that the shamelessness of American policing is a fertile source of common ground, those of us in the courthouse will have to do our best to repair the irreparable harm of American law enforcement.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Emily Galvin Almanza is the co-founder and executive director of nonprofit Partners for Justice. Previously, she worked as a public defender in California and New York.