Police Reform Should Curtail, Not Codify, Qualified Immunity

By Edward Ibeh | June 28, 2020, 8:02 PM EDT

Edward Ibeh
Edward Ibeh
As evidenced by protests fueled by social unrest, the United States is coming face to face with its troubled history (and equally troubling present) of police brutality against Black Americans.

Interpretations of laws meant to prevent injustice have led to the development of the judicially created doctrine of "qualified immunity," which acts as a barrier for plaintiffs seeking recourse through civil legal action. As a result, separate factions of Congress have made attempts to revise, or completely erase, the qualified immunity defense.

All reform, however, is not equal. The recently commissioned and defeated Reforming Qualified Immunity Act did little to address the systemic issues with the qualified immunity defense as it has been applied.

Qualified Immunity in Practice

Through various decisions, the U.S. Supreme Court has impeded a plaintiff's path to victory under Title 42 of the U.S. Code, Section 1983. Specifically, the Supreme Court introduced a "good faith" defense[1] that shields state actors from liability so long as they subjectively believed they were doing right and were not ignorant to "indisputable law," added an inquiry of whether the right that a state actor violated was "clearly established"[2] at the time of the violation, and ultimately placed the onus on plaintiffs to provide case law with "materially similar" facts that previously held that the complained of action was unconstitutional.

The last of these additions is especially problematic because courts are under no obligation to affirmatively find that a complained of action is unconstitutional before dismissing a case on qualified immunity grounds.[3] Without the benefit of an opinion holding that the complained of action is unconstitutional, a later plaintiff with the same fact pattern will not have the benefit of a benchmark case that showed that the law was so clearly established at the time of the violation of their rights.

Additionally, resolution of civil cases by settlement is common, and will often result in no decision as to whether the officer's actions violated the Constitution. Again, no benchmark is set.

Why the Senate Republicans' Reforming Qualified Immunity Act Was an Act of Bad Faith

Presumably with this understanding, Sen. Mike Braun, R-Ind., introduced the Reforming Qualified Immunity Act on June 23.[4] Some — including Jaime Harrison, the South Carolina Democrat challenging Sen. Lindsey Graham, R-S.C. — indicated that the act did not go "far enough."[5]

Not only did the act fail to go far enough, it was dead on arrival to the extent that it was actually intended to address the issues with qualified immunity. While the act proclaims its intent to roll back the qualified immunity protections, the end result of the act quite possibly attempted to strengthen qualified immunity protections by express codification.

The act provided that a person acting under color of law would still receive qualified immunity if: (1) the conduct in question was "specifically authorized or required" by federal statutes or regulations, or by the legislation of the state where the incident occurred; (2) the officer reasonably believed that his or conduct was in conformance with the Constitution and; (3) no court had previously held (on the merits such as by summary judgment, trial or directed verdict) that the specific action was inconsistent with the Constitution or federal law. While this appeared to be a heavy burden, it was unlikely that it would be in practice.

The first prong, that the officer's action was "specifically authorized or required" by federal law or state legislation is broad and left open the possibility that the mere fact that the officer was acting pursuant to his or her authority to enforce the law would amount to a "specifically authorized" action.

The second prong, that the officer reasonably believed that his or conduct was in conformance with the Constitution, is a subjective assessment that will be nearly impossible to disprove.

The third prong, that no court had previously held that the specific action was inconsistent with the Constitution or federal law, is troublesome because, as noted above, judges have been, and continue to be, empowered to skip the constitutional violation question, which prevents subsequent plaintiffs from having the precedential decision necessary to show that the complained of action has already been deemed unconstitutional.

The combination of these three easily met prongs was merely an attempt to placate those demanding actual qualified immunity reform.

Additionally, the provision of the act that "removes" qualified immunity specifically excluded persons employed by municipalities or local government that acted in their official capacity. Law enforcement officers are often employed by municipalities or local government. Accordingly, the act would have little effect on the availability of lessening the burdens presented by the qualified immunity defense as it exists today.

Lastly, the act appeared to limit municipal liability for acts conducted within the "scope of enforcement," as opposed to those acts taken under "color of law." As a result, municipalities would be free to make the argument that an officer that violated the Constitution was engaged in actions outside of the scope of authority and absolve the municipality from liability despite the officer acting under color of law.[6] It is not clear whether this provision would have also been interpreted as a replacement for the existing pattern and practice liability for municipalities.

Progress With the Justice in Policing Act of 2020

On June 25, the House of Representatives passed the George Floyd Justice in Policing Act of 2020, or JIPA.[7]

JIPA, similar to the Ending Qualified Immunity Act that was introduced earlier this month, declares that qualified immunity is unavailable on grounds such as a good faith belief that the conduct was lawful or that the law was not so clearly established that the complained of action was unlawful.[8]

There are three main differences, however, between JIPA and the Ending Qualified Immunity Act.

First, JIPA limits the rollback of qualified immunity protections to local and federal law enforcement officers, and does not affect the existing immunity protections for other persons acting under color of law, such as judges and, arguably, prison guards.

Secondly, JIPA amends other areas of the law by (1) strengthening oversight of Section 1983 violations by municipalities and local governments by granting the U.S. attorney general with subpoena powers to carry out investigations related to pattern and practice investigations, (2) granting state attorneys general the authority to pursue civil actions for equitable and declaratory relief and to collect anonymized data related to excessive force incidents; and (3) authorizing the U.S. attorney general to award up to $100 million in grants annually to states to assist in their pattern and practice investigations.

Thirdly, JIPA authorizes the U.S. attorney general to award up to $750 million for a two-year period for states to implement independent investigations of law enforcement officers' use of deadly force.

While JIPA would considerably change the nature of qualified immunity and oversight of excessive force complaints, it arguably does not go far enough. The act fails to reduce the existing barriers for Section 1983 suits against municipalities or local governments and fails to expressly preempt states from instituting their own versions of qualified immunity.

For example, Florida Statute 768.28 (9)(a) provides that officers are not liable for injuries or damages they cause unless they are the result of bad faith, malicious purpose, or a wanton and willful disregard of human rights, safety or property.[9] Instead a plaintiff is required to sue the state (or the subdivision) employing the officer. These suits are subject to a statutory cap of $200,000 that can only be exceeded jumping through logistical hurdles. Furthermore, liability tied to the municipality for an officer's action comes at a cost to taxpayers rather than the officers themselves.

While JIPA, as passed, is not perfect, it is a far cry from the Reforming Qualified Immunity Act that was an attempt to clandestinely strengthen the protections that have operated for far too long as a shield for officers.



Edward U. Ibeh II is an associate at Akerman LLP.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] https://supreme.justia.com/cases/federal/us/420/308/

[2] https://supreme.justia.com/cases/federal/us/457/800/

[3] https://supreme.justia.com/cases/federal/us/555/223/

[4] https://www.braun.senate.gov/sites/default/files/2020-06/SIL20757.pdf

[5] https://thehill.com/homenews/campaign/504619-jaime-harrison-gop-police-reform-bill-doesnt-go-far-enough

[6] https://www.courtlistener.com/opinion/1642292/mcghee-v-volusia-county/

[7] https://time.com/5860092/house-george-floyd-justice-policing-reform/

[8] https://www.congress.gov/bill/116th-congress/house-bill/7120

[9] https://codes.findlaw.com/fl/title-xlv-torts/fl-st-sect-768-28.html

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