Qualified immunity shields police officers from liability in civil lawsuits, creating a much more difficult path for plaintiffs to sue police officers in civil court. If officers are found liable in civil court, they’re ordered to pay money to the plaintiffs, which is dispersed from the law enforcement agency or the municipality, not the individual officer.
Qualified immunity, once considered an intricate federal doctrine that puzzled attorneys and upended civil rights cases, has now become a hot topic of debate as one by one, states and cities across the country are doing away with the 54-year-old defense that grants protections to law enforcement officers who are accused of violating civilians’ constitutional rights.
In California, qualified immunity is poised to be drastically changed with the pending passage of S.B.2. The bill won’t eliminate the doctrine that Supreme Court Justice Sonia Sotomayor calls a “shoot first think later” approach to policing, but it will make it easier to hold officers accountable for violating someone’s civil rights.
Despite the body worn camera videos, videos from civilians and other evidence supporting a plaintiff's case alleging police misconduct, police officers are almost always shielded from a civil liability verdict under the qualified immunity defense. As a result, civil rights attorneys have limited interest in taking police misconduct cases and civilian confidence in law enforcement is continuously damaged because the growing community sentiment seems to be that police officers time and time again appear to commit unjust acts of violence and bypass consequences.
In Sonoma County, we’ve seen civil lawsuits like that of Andy Lopez or David Ward result in multi-million-dollar settlements, but those cases are the exception according to Karlene Navarro, Director of the Independent Office of Law Enforcement Review and Outreach (IOLERO). Navarro says that when a case like Andy Lopez’s reaches a settlement, it is often because the parties chose to settle before the qualified immunity issue was fully litigated. However, most cases where a citizen alleges civil rights violations for injuries or even death do not make it past the qualified immunity issue.
“Qualified immunity was justified by way of the Supreme Court to weed out insubstantial cases, but it’s actually weeding out the most substantial cases,” says Joanna Schwartz, Professor of Law at the University of California Los Angeles School of Law and national expert on police misconduct. “Getting rid of qualified immunity would mean that there would be more decisions that interpret the scope of the constitution, which would give clarity not only to other courts but to police departments that are trying to draft policies for the officers on what they’re allowed to do.”
Qualified immunity shields government officials from liability for damages, even if they violated the Constitution, as long as they did not violate “clearly established” law. According to the United States Supreme Court, the law is “clearly established” only when a court held in a previous case that an officer violated the Constitution under identical circumstances. This standard is exceedingly difficult to meet. Schwartz explained this with the 2014 case of Alexander Baxter, who after burglarizing a house, surrendered to police by sitting on the ground and putting his hands in the air. The police still released their dog on Baxter who bit Baxter’s left arm multiple times.
Baxter filed a lawsuit against the police, and it made its way up to the 6th District Court of Appeals. A previous case from the 6th District Court of Appeals had found that it was unconstitutional to release a police dog on someone who has surrendered by laying down on the ground. Ultimately, the appeals court in Baxter’s case ruled that this precedent did not “clearly establish” that it was unconstitutional to release a police dog on a surrendering suspect who is sitting with his arms raised because the defendant in the prior case was laying down. The Supreme Court of the United States declined to hear the case.
Currently, the country is seeing the tide turn on this hair-splitting approach to police accountability. The aftermath of the murder of George Floyd and momentous Black Lives Matter protests of last summer have reigned in a legislative movement to reform and eliminate qualified immunity. Colorado, New Mexico, Connecticut, Massachusetts, and New York City have all either terminated the defense or have restricted officers’ qualified immunity in the court of law.
In California, the future of qualified immunity currently rests in S.B.2, a bill written by Senators Steven Bradford (D-Gardena) and Tempore Atkins (D-San Diego). The proposed legislation aims to create higher standards of police accountability and would revoke the certification of an officer who is convicted of misconduct or a serious crime. S.B. 2 also bolsters the Tom Bane Civil Rights Act, making it easier for victims of law enforcement abuse to sue officers civilly. In late April, after a combative long hearing, the California Senate committee voted 7-2 in favor of the bill and it’s now set to be discussed before a fiscal committee and then a possible floor vote.
Napoleon Reyes, PhD, Associate Professor and Chair of Sonoma State University’s Criminology & Criminal Justice Studies department sees S.B.2 as reckoning with the “blue wall of silence.” He explained that if the bill is made into a law, plaintiffs will still have to prove that officers were intentionally violating their rights. What S.B.2 erases is the requirement to show that the violation was deliberate or spiteful.
“What this proposed legislation is intended to do is underscore the accountability aspect,” says Reyes. “I understand the pushback from law enforcement agencies. They argue that there will be a flood of litigation and officers will be more timid in enforcing law in fear of being sued. Sure, there will be litigation but if there’s baseless allegations then the court will throw them out.”
Reyes opined that ultimately, S.B.2 stands to improve relationships between civilians and law enforcement and will change police culture throughout the state. “If we are to be true to the model of serve and protect, which comes with great responsibility, then law enforcement should welcome this opportunity to hold those who violate the rights of others accountable.”
