House Democrats last week introduced a federal police reform bill. As usual, the bill is terrible, even in concept. Policing is a local issue.
But, like a broken clock, the Democrat bill is right on one matter: their bill makes qualified immunity a legislative issue instead of a judicial concern.
What Is ‘Qualified Immunity’ #
Qualified immunity bars lawsuits against public officials whose actions cause actual damages unless those actions violate the law.
For example, you can’t sue a police officer who arrests you on suspicion of drunk driving even if you passed all the field tests to determine intoxication.
The concept does not protect police officers who break the law, though. For example, if instead of arresting you for suspicion of DUI, the officer beats you with a club, he would be liable.
Qualified immunity is a legal concept that protects most public officials from civil liability. It extends sovereign immunity to individuals who work for the government. The concept was never codified into law by the legislative branch. Qualified immunity is pure judicial fiat in that it has no basis in the common law.
What the Dems Get Right #
The police reform bill proposed by Democrats last week would, finally, return to the legislative branch the responsibility for writing the law. Letting judges invent laws that no legislature ever passed is always a bad idea.
Further, the Democrats deserve credit for bringing qualified immunity into the public debate. Law scholar Glenn Reynolds has been advocating for a legislative solution to qualified immunity for years. It’s too bad the Democrats took up the matter before Republicans, but good for them.
How Should Qualified Immunity Be Amended? #
Qualified immunity is not a bad concept. But it has two major defects that must be addressed at the state level, not the federal.
Qualified immunity must emerge from the branch of government that writes the law: the legislative branch. Currently, qualified immunity is not a law at all; it is a judicial concept. We cannot rightly call it a law until a legislature makes it one following the process laid down in the US and state constitutions. Qualified immunity laws, when enacted, must apply to all public officials, not just some.
The Democrats' bill would allow citizens to sue police officers individually for doing lousy police work. I have no problem with that. But all public officials should be liable for doing bad public work.
Andrew Cuomo killed at least 6,000 nursing home residents by ordering nursing home to house patients who tested positive for Coronavirus. This reckless act introduced the disease into facilities that had been virus-free previously. But Cuomo is immune from personal liability for his deadly actions. Why should he be?
Gretchen Whitmer imposed an extended and brutal lockdown in Michigan despite no legal authority to do so. Her reckless actions destroyed millions or billions of dollars in business value and denied citizens their civil rights. She cannot be sued thanks to qualified immunity.
If the Democrats want to expose police officers to lawsuits for bad police work, they must be willing to expose bad governors to lawsuits for bad governance.
The Right Approach #
The right approach to reigning in corrupt public officials begins at the state level. Legislators in every state should be work to codify their state’s qualified immunity laws.
Let Missouri determine the degree to which judges, elected officials, and state employees are exposed to lawsuits for dereliction of duty, abuse of power, or reckless use of their authority.
These laws, in our view, should shield public officials from some suits arising from adverse outcomes. As the Supreme said in Pierson v. Ray, “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does.”
Similarly, teachers should feel immunity from lawsuits related to reasonable methods of teaching and discipline.
Police should not be immune from suits when they show bad judgment that results in measurable harm.
But let our governors, mayors, and bureaucrats suffer personal liability damages when they act in bad faith, overstep their authority, or otherwise harm citizens through dereliction of duty. There is no reason why Andrew Cuomo should be allowed to kill thousands without facing severe consequences, just as police officers cannot kill a suspect in their custody.