“Qualified Immunity” As Real Change In The Wake Of George Floyd Rioting!

“Qualified Immunity” As Real Change In The Wake Of George Floyd Rioting!

Ratings versus Reality. It seems that all TV media wants to do, when talking about the George Floyd public outcry, is to bring on TV pundits that support dismantling of the police force or stick with the status quo. What? Would you feel safe if there were no law enforcement? Most of us say “no!” In the same breath can we promise our impressionable teenagers that Officer Chauvin who fatally kneeled on Floyd’s neck is just a bad apple and “things will get better.” How? When? While TV rating battles continue and pundits get paid for chasing their tails, we need a reality check. What is a reachable solution? I say it is the state of the law on qualified immunity that is failing us and this is why.

Since the doctrine of “Qualified Immunity” came to insulate law enforcement from civil liability in Harlow v. Fitzgerald (1982) 457 U. S. 800, cops can commit unconstitutional acts against citizens (like releasing a K-9 to viciously attack a suspect sitting on the ground with his hands up) that are unconstitutional with impunity if there is not a case on point saying that the exact same activity in an earlier case was unconstitutional. Huh?

What came first, the chicken or the egg?  Justice Clarence Thomas is questioning just when this idea became “common law” so as to justify qualified immunity by SCOTUS in 1982. And on the other end, so to speak, is Justice Sotomayor saying that racist cops can stay on the force forever violating public trust if things don’t change. And my fellow defense attorneys might curse me for saying that I agree with both the right and the left on this one. And I will take it a step further and argue that municipal police unions have protected bad cops for a long time. Like the officer, now defendant, Derick Chauvin, who is reported to have had 18 serious complaints on file but was still on the police force. Of course, it is only fair to say that there are reports that George Floyd was no angel worthy of martyrdom. On and on, the mainstream media and Fox talk about the issue that begs the question of why we are not talking about “qualified immunity?”

Media wants ratings and many of us want an answer that makes sense. Remarkably, it is right in front of us and the SCOTUS today, as I write this blog. SCOTUS is having one of their regular conferences on what important cases to hear this session starting in October. They have 13 “Qualified Immunity” cases to pick from involving the worst acts you can imagine by rogue officers that represent such a small fraction of police officers yet cause such a huge disruption in society. Rethinking qualified immunity to offer less protection to rogue police officers would be a major step in the right direction. Why? Because, for instance, Officer Chauvin might have been singled out for more training…or better yet, fired if the Minneapolis Police Department knew that they would be held liable if he kept his pattern of complaints. The Cato Institute commentators made a brilliant observation that Police Departments might need to carry insurance to help redress the wrongs. Insurance is not a panacea, but it influences the behavior of the person on whom the buck stops. Think about it. If UPS or FEDEX has to pay more insurance for a driver that cannot drive safely, they have to let the driver go. Adios!  Union or no union, the cost of insurance seems to level the playing field, doesn’t it? There is little or no reasonable argument against this idea being applied to government law enforcement. Too many lawsuits? Maybe that would be the case now, but if there were more police officers that thought they might lose their job if their actions warranted too many complaints, they might act like the majority of the police officers we all know and respect. The motto “to Serve and Protect” would mean what it should and has in the past. So why don’t we call out the media to talk about real solutions instead of heating up the public more and more each day? I urge you to reach out on social media and ask the Media to start debating “Qualified Immunity” that could bring about real change (and forget the politics.) Enough!

By Daniel M. Smith, Esq.