Immunity From Liability for Police Challenged by Civil Rights Advocates

WASHINGTON — Police officers’ immunity from liability fell under attack again Thursday in Congress as civil rights activists urged lawmakers to abolish the doctrine.

They said the protection from lawsuits and criminal prosecution normally given to officers encourages irresponsible behavior by police.

“The harm seems to outweigh the good when it comes to qualified immunity,” said Rep. Steve Cohen, D-Tenn., chairman of the House Judiciary Committee.

His plea for reform fell on deaf ears among Republicans on the committee who warned that using the legal system to punish police means the officers would be less willing to uphold the law.

“We need police officers and we need to maintain law and order,” said Rep. Mike Johnson, R-La.

The Supreme Court ruled in the 1982 case of Harlow v. Fitzgerald that public officials could not be sued unless they violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

The movement to abolish the doctrine gained political momentum after Minneapolis, Minnesota, police killed George Floyd on May 25, 2020. It also led outraged protesters to demand defunding police.

“It’s insanity,” said Johnson, who added that reforming police training and procedures was a better option. Greater liability and a smaller presence for police would result in a higher crime rate, he said.

The Floyd killing prompted Democrats in Congress to introduce the George Floyd Justice in Policing Act of 2021.

The bill seeks to hold law enforcement officers accountable for misconduct through private lawsuits. Other parts of the bill would make police data collection more transparent and revise police training and policies.

Police would be restricted in use of force, no-knock warrants and chokeholds.

The bill passed last year in the House along party lines but has never made it to a vote in the Senate.

Some legal experts who testified at the House hearing said not revising qualified immunity creates a greater risk laws will be violated than leaving it in place. The difference from any other crime is that the victims would have no legal remedy, they said.

“Police do not effectively police themselves nor can Americans rely on the criminal justice system for accountability,” said Arthur Ago, director of the Criminal Justice Project at the Washington-based Lawyers’ Committee for Civil Rights Under Law.

He cited figures showing 26% of the people killed by police are Black despite the fact they make up 13% of the U.S. population. Thirty-seven percent of unarmed people killed by police are Black, he said.

“In the simplest terms, qualified immunity undermines civil rights in the United States,” Ago said.

Tiffany Wright, a Howard University Law School professor, told about a Texas inmate she represented who argued before the Supreme Court that unsanitary conditions in his cells violated his Eighth Amendment rights against cruel and unusual punishment.

Prison guards allowed the cells to become covered with feces without cleaning because they knew they would have no liability for their inadequate care of inmates, the attorney argued in the case of Taylor v. Riojas.

The U.S. Court of Appeals for the 5th Circuit dismissed the inmate’s lawsuit by granting the guards qualified immunity. The Supreme Court reversed the ruling, saying “any reasonable correctional officer should have realized that Trent Taylor’s conditions of confinement offended the Eighth Amendment.”

“All of this means that the harm of qualified immunity falls on the victim,” Wright said.

Some states, namely Colorado, Connecticut and New Mexico, decided not to wait for Congress to act by abolishing qualified immunity under their local laws.

The issue arose in New Jersey on Wednesday when the state Supreme Court agreed unanimously to allow a man to sue two Newark, New Jersey, police officers who wrongfully arrested him for armed robbery. He was imprisoned for three months and lost his job before he was cleared of the charges.

The city claimed qualified immunity for the police.

The New Jersey Supreme Court ruled that officers do not always have a right to qualified immunity when key facts in the case are disputed. In those cases, a jury must decide liability.

Tom can be reached at [email protected]