The New York Times editorial board is a font of conventional thinking. (Note that I did not say, “Wisdom.”)
You won’t find bold new or visionary ideas, but it is a good marker of where the conventional, “Wisdom,” is going, so their OP/ED calling for the end of qualified immunity for police officers might be an indication of a sea change in the elite consensus:
When a Minneapolis jury last month convicted the former police officer Derek Chauvin of murdering George Floyd on May 25, 2020, many Americans celebrated. At last, a moment of accountability, if not quite justice, in the face of persistent police brutality.
But for all the justified relief at the verdict, a troubling reality lurks: Had Mr. Chauvin not been criminally prosecuted — as the vast majority of police who kill in the line of duty are not — he may well have faced no consequences at all.
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Qualified immunity arose out of an 1871 civil rights law that made government officials, including police officers, financially liable for violating a person’s constitutional rights. In a series of rulings starting in the late 1960s, the Supreme Court decided that an officer is immune from liability unless it can be shown that he or she broke “clearly established” law in the process. The burden is on the plaintiff to make this showing, and the bar is absurdly high: If no other court has previously ruled in a case involving an essentially identical set of facts, the law is determined to be not “clearly established.”
Examples of courts splitting hairs to give a pass to even egregious misconduct abound: the prison guard who pepper-sprayed an inmate in the face “for no reason at all”; the officer who fired at a nonthreatening dog and missed, accidentally hitting a 10-year-old child lying nearby on the ground; the officers who stole $225,000 in cash and rare coins while executing a search warrant; the officer who shot a 14-year-old boy after he had dropped a BB gun and raised his hands.
“I don’t think there’s any serious argument but that the qualified immunity doctrine as it currently exists is completely off the rails,” said Barry Friedman, a law professor at New York University and a founder of the Policing Project, which aims to give the general public a role in shaping law enforcement policy. “It makes no sense whatsoever and gives police officers far more leeway than they ought to have.”
In short, it’s hard to see what is qualified about qualified immunity.
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In practice, qualified immunity has become what Justice Sonia Sotomayor has called an “absolute shield” that “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
The court has also expressed the concern that individual cops will be bankrupted by judgments. This simply doesn’t happen. To the contrary, governments virtually always foot the bill for police wrongdoing. One study found that officers personally paid only .02 percent of the dollars that plaintiffs were awarded.
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Ending or curtailing qualified immunity would not be a cure-all for police brutality. By the time it becomes an issue, the harm has already been done. While holding people and departments accountable is important, it’s even more important to ensure that the harm doesn’t occur in the first place. “Police misconduct is often a systemic problem. These are not just bad apples but bad barrels,” said Joanna Schwartz, a law professor at U.C.L.A. who studies police misconduct. “We should be thinking about how to reduce the harm, not just pay people.”
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The more immediate solution is legislative. Congress is currently considering the George Floyd Justice in Policing Act, a far-reaching bill addressing racial discrimination and excessive force by law enforcement officers. One provision would eliminate the “clearly established” defense and prevent cops from relying on their own belief that their conduct was lawful. Unfortunately, that has become the bill’s main sticking point, as most Republicans have sided with police unions in opposing any liability for individual officers.
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If the rule of law means anything, it means that those sworn to enforce it should not be above it.
The current state of policing int he United States is needlessly corrupt and brutal.
It must be reformed, and many, if not most, of its current members need to removed.
