Mar 3, 2021 - Politics & Policy

Police officers' immunity from lawsuits is getting a fresh look

Illustration of a police badge wrapped up in yellow tape that reads, "Police Line Do Not Cross."

Illustration: Aïda Amer/Axios

Nearly a year after the death of George Floyd, advocates of changes in police practices are launching new moves to limit or eliminate legal liability protections for officers accused of excessive force.

Why it matters: Revising or eliminating qualified immunity — the shield police officers have now — could force officers accused of excessive force to personally face civil penalties in addition to their departments. But such a change could intensify a nationwide police officer shortage, critics say. 

The details: The federal George Floyd Justice in Policing Act, sponsored by Karen Bass (D-Calif.) and House Judiciary Committee Chair Jerrold Nadler (D-N.Y.), seeks to limit the use of qualified immunity in cases involving police and constitutional rights violations.

  • A proposal in New Mexico seeks to eliminate qualified immunity for police officers accused of violating someone's constitutional rights.
  • A Texas bill would create a process to sue police officers in state court for using excessive force without the possibility of qualified immunity as a defense.

Last week, the U.S. Supreme Court revived a civil rights lawsuit filed by a convicted murderer in Texas against a prison guard accused of using pepper spray against him in an unprovoked attack, Reuters reported. Legal scholars say this was a case that could dent qualified immunity.

The intrigue: Proposals aimed at tackling qualified immunity are part of larger overhauls of policing that also seek to ban chokeholds, build a registry of troubled officers and make it easier to pursue criminal charges against police.

What they're saying: "I think what has happened is that, in so many instances, we've taken 'qualified' and substituted 'absolute.' It's not absolute. So why is it being enforced as absolute immunity?" Rep. Jim Clyburn (D-S.C.) told Axios.

  • Clyburn said there should be cases where officers face legal liability for violating the rights of citizens, rather than just putting their departments on the hook for damages.
  • "We believe that nobody should be above the law, and nobody should be protected by belonging to an institution. You're responsible for your actions," said Fernando García, executive director of the Border Network for Human Rights.
  • García said qualified immunity protections should also be abolished for federal agents like the Border Patrol.

Yes, but: Police unions and law enforcement leaders say attacks on qualified immunity are unfair since it mainly protects officials who lawfully use force in the line of duty.

  • "These so-called police reforms create a chilling effect for the entire law enforcement community. That effect, in turn, results in a less safe society as a whole,” Bernalillo County Sheriff Manuel Gonzales III of Albuquerque, N.M. told Axios.
  • They say reforms like eliminating qualified immunity could discourage people from going into law enforcement and force some to retire early over fears of being sued.
  • The Police Executive Research Forum, an organization of police executives, said an officer shortage is hitting departments across the country.

According to the Bureau of Justice Statistics, the number of full-time sworn officers in U.S. law enforcement agencies declined by more than 3 percent between 2013 and 2016.

The other side: Michael E. Grady, a civil rights advocate in El Paso, Texas, said anyone who is worried about getting sued for excessive force shouldn't be in law enforcement anyway.

  • "If you don't want to be held accountable, it's not a good fit. We'll get someone else."

Don't forget: Cities, counties, and states have paid out hundreds of millions of dollars in civil legal damages to settle alleged cases of police excessive force, even as officers escape criminal charges.

  • The city of Albuquerque, for example, has paid $64 million in settlements over the last 10 years in connection with 42 police shootings.
  • Albuquerque police are under a Department of Justice consent decree over excessive force. An independent police monitor said in November that despite the changes required by the consent decree, Albuquerque police have “failed miserably in its ability to police itself.”
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