When Breonna Taylor, a 26-year old Black woman, was killed at home during a botched police raid, her family settled with the city of Louisville, Ky., for $12 million and changes to police practices.
The officers, however, were not charged in her death. And unlike their employer, it is highly unlikely that they will be successfully sued, thanks to a U.S. Supreme Court doctrine known as “qualified immunity.”
Reformers have targeted the protection for police in the courts but have gotten nowhere. The Supreme Court has refused to take up cases directly addressing the issue this year prompting a different approach.
“In the absence of court action, legislative action is available and I think preferable,” former Minnesota Supreme Court Justice Alan C. Page, the first Black judge on that court, told Bloomberg Law.
Qualified immunity protects government officials, including those in law enforcement, from civil suits, unless plaintiffs can show “clearly established” rights were violated, a standard that is difficult if not impossible to meet.
To overcome a qualified immunity defense, plaintiffs must show that any police actions they challenge were previously found to be unconstitutional in cases with similar facts by courts in their jurisdiction.
Courts expect the facts in a civil lawsuit to be an exact match to previous cases of unconstitutional behavior. Finding a suitable precedent is crucial to helping convince judges to chip away at police immunity.
“In order to press back against qualified immunity in the courts and in legislation, what’s most important is showing the range of absolute egregious facts that have still formed a basis for defendants receiving qualified immunity,” said Paul Hughes, appellate lawyer at McDermott Will & Emery in Washington, D.C. and a member of the board of directors for The National Police Accountability Project.
The result of that standard, though, is that targeting police immunity through the courts requires a slow, piecemeal approach, with multiple cases in different jurisdictions, each with their own precedent and standards.
“When rallying against qualified immunity and tackling multiple municipalities, it’s a local fight,” said Barry Friedman, founding director of New York University School of Law’s Policing Project, making any changes “an extremely long process.”
Advocates had high hopes the Supreme Court would reconsider the doctrine this year, clarifying the standard for federal courts across the country. Three cases before the court this term involve suits against government officials, but the justices in May, in June, and again on Monday declined to take up more than a dozen cases directly challenging police immunity.
“I really had my fingers crossed that they were going to take up those cases and do the right thing and they didn’t,” said Alexandra Brodsky, a staff attorney at the nonprofit legal advocacy group Public Justice.
For Brodsky, it reinforced the view that progress would come outside the courts.
“The law can be a helpful way to make change, but I feel most hopeful when I hear about the efforts from organizers demanding change outside of lawsuits,” she said. “I don’t know or think that the answer to this problem is only or even primarily through further litigation.”
Cases like Taylor’s and the death of George Floyd in Minnesota did galvanize outside efforts.
A coalition of civil rights and progressive groups including Public Justice is urging Congress to pass the Ending Qualified Immunity Act (H.R. 7085), first introduced in the House of Representatives by Reps. Ayanna Pressley (D-Mass.) and Justin Amash (I-Mich.) in June. Sen. Ed Markey (D-Mass.) introduced a companion bill (S.4142) in the upper chamber in July.
But advocates acknowledge abolishing police immunity in Congress is an uphill climb.
“Getting a bill through Congress abolishing qualified immunity is virtually impossible at the moment,” Friedman said. “There’s no way that a Republican-led Senate will buy in. I think many Republicans, if not many people, see it as an attack on cops and so they’re not willing to go there.”
Action in the States
Hughes pointed to efforts in state legislatures and cited a law signed in Colorado by Democratic Gov. Jared Polis in June removing the defense for law enforcement officials.
Friedman said other states may follow suit, but it’s “too early to tell.”
“States are, in some ways, an equally logical place to address the question,” Friedman said, but tackling the issue outside the courts brings its own political obstacles.
“There’s a strong police lobby against changing those rules and many people who are elected to do something about this will be perceived as being anti-police,” Friedman said.
Advocates told Bloomberg Law they don’t believe there is a constitutional barrier to revoking qualified immunity, but Brodsky said she would expect to see “police departments challenge any such efforts.”
Police groups have fought changes.
“Without qualified immunity, officers will also be less comfortable navigating split-second, lifesaving decisions that must be made in the face of public threats because they know they will lack protection for their actions,” said Larry Cosme, president of the Federal Law Enforcement Officers Association.
Stephen Schulz, president of the Colorado Fraternal Order of Police, mirrored that sentiment.
“While Colorado FOP supports increased accountability and transparency, we did not support eliminating the qualified immunity defense under state law,” Schulz said.
Despite that opposition, legislation still offers more promise to some critics of police immunity.
“When courts apply qualified immunity, they’re just looking at the law and going to where the law takes them,” Page said. “But, Congress has the ability to put in place legislation which would impact how qualified immunity operates. The work has to be done on the outside of the courtroom.”
“The legislative process is how to go about change in this area,” Page said.
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