America’s Need for Police Accountability
By Tony Owens ‘24
Over the past several years, calls for police reform have only gotten louder. With each passing day, it seems as though more and more Americans are losing faith in the institution that was put in place to “serve and protect” them. An August 2020 Gallup poll found that less than half of Americans have confidence in the police. This is a drastic dive from within the past two decades, when nearly two thirds of Americans expressed confidence in the police. Increasingly so, Americans are beginning to question if police forces are truly acting in their best interests. This lack of trust is not good for either anyone, and we as a society must take action in order to restore it. While this is a complex topic, there are several steps we can take to begin addressing the problem before it worsens.
One solution is to ensure that the police are held accountable whenever they act unlawfully. However, this is made difficult by a legal principle called qualified immunity. Qualified immunity protects government officials from civil liability for misconduct, even when their conduct is illegal, so long as they did not violate a clearly established law. The American Bar Association explains this standard “generally requires civil rights plaintiffs to show not just a clear legal rule, but a prior case with functionally identical facts.” This standard can be extremely rigorous. The Institute of Justice explains a case where officers were granted qualified immunity when they “let their police dog attack a suspect who was seated with his hands raised because the court found that an earlier case in which police let loose their dog on a suspect who was lying down wasn’t a close enough match.” This standard makes it extremely difficult to hold police accountable, as qualified immunity can protect them even when their actions are clearly illegal.
Few occupations have such lax standards for accountability. An example of a much more strict standard is that for medical malpractice. Medical malpractice standards merely contain three requirements: a “violation of the standard of care”, evidence that “an injury was caused by the negligence,” and proof that “the injury resulted in significant damages.” If this standard were in place for the police, officers would have to pay damages every time they violated someone’s legal rights and the violation resulted in a serious injury. Instead, officers often face no financial consequences for their wrongdoing, even if their department pays a settlement to the victims. As an alternative to qualified immunity, this standard would result in greater personal accountability for police officers, knowing that they could be held personally liable for their actions and could be sued for damages they have caused.
This could also reduce the amount of money that police departments spend on settlements. The New York Police Department, for example, spent over $1 billion on claims and lawsuits in the year 2020 alone. Departments could redirect this money to increase the quality of training, acquire or upgrade body cameras, and fund other purchases and programs that could help improve the quality and efficiency of the police force.
Critically, there is legislation that could help make this a reality. H.R. 1280, also known as the George Floyd Justice in Policing Act of 2021, includes several provisions geared towards holding the police accountable. This bill “limits qualified immunity as a defense to liability in a private civil action against a law enforcement officer.” President Biden has made it clear that he supports this legislation and has urged lawmakers to pass it. The legislation has passed the House of Representatives but will face a much tougher road in the Senate. It appears as though even the few Senate Republicans who are open to compromise to pass police reform have no interest in ending qualified immunity for police officers. Senator Tim Scott (R-SC) has floated the idea of liability for police departments instead of the officers themselves. While this could help, it does not place any personal liability on police officers should they engage in misconduct. Moreover, even that approach is unpopular with other Senate Republicans. For instance, Senator Josh Hawley (R-MO) has little interest in any significant change to qualified immunity. Hawley stated, “I don’t want anything that would phase out or that would weaken in any meaningful way qualified immunity for cops or other law enforcement”. While some bipartisan discussions have taken place, any substantial limitations to qualified immunity remain unlikely.
While the abolition of qualified immunity at the federal level seems unlikely, several states have passed legislation to take matters into their own hands. On April 7, 2021, New Mexico Governor Michelle Lujan Grisham signed the New Mexico Civil Rights Act into law. This legislation grants anyone in New Mexico the ability to sue anyone regardless of whether they are a government official. The legislation also prohibits the use of qualified immunity as a defense in state court. After July 1, 2021, residents of New Mexico will be able to seek up to $2 million in damages against law enforcement for a violation of their rights under the New Mexico state constitution. Colorado and New York City have similar legislation in place and Connecticut has limited the use of qualified immunity, but their legislation is much less strict. The Connecticut legislation “requires indemnification for all officers who don’t act maliciously”, greatly limiting the effectiveness by raising the standard needed to successfully litigate.
Even so, this could serve as an excellent blueprint for other states. Similar to the way many states have legalized marijuana, it is possible that the effective end of qualified immunity will come when states allow for civil litigation against law enforcement and prohibit the use of qualified immunity as a defense in state courts. Other states, such as Illinois, have begun to move towards similar legislation. On May 11, 2021, state Senator Nia Gill introduced a bill in the New Jersey State Legislature aimed to follow the example set by New York City. Of course, this solution is not perfect, but it could go a long way towards holding the police accountable. These are perhaps the first steps towards a society with high trust in law enforcement, and where people do not fear every interaction with the police.