On Monday, the Supreme Court once again rejected any meaningful change to its jurisprudence around qualified immunity, the court-created doctrine that shields police officials from lawsuits in cases of possible misconduct. The court’s harsh rulings in a pair of per curiam decisions with no noted dissents came on the heels of a recent announcement that the Senate failed to reach an agreement on long-awaited federal legislation to transform policing in America. The Senate’s failure was a clear betrayal of the millions around the country who took to the streets to demand accountability and change in the wake of George Floyd’s murder last year, and the Supreme Court’s decisions this week compounded the consequences of that betrayal. With our federal government now having failed to affirm the rights of victims of police abuse, it’s now fully up to the states to protect Americans from the horrific consequences of qualified immunity. A few states have started to make some reforms, but so far not nearly meaningfully enough.
Qualified immunity is a judge-made doctrine that has been repeatedly used to shield law enforcement officers from civil liability even when they seriously violate people’s constitutional rights. Since its introduction in the late 1960s, the courts’ increasingly aggressive application of the doctrine has enabled law enforcement officers to escape liability for atrocities such as shooting an innocent child while trying to shoot his nonthreatening dog; stealing hundreds of thousands of dollars from suspects while executing a search warrant; and denying a pretrial detainee visitation rights to see his children for ten months.
The brutal approach of the courts and inaction in Congress does not mean, however, that meaningful reform is impossible. Just as the Constitution protects the civil rights of all Americans, every state has its own constitutional protections for the civil rights of people within its borders. (Indeed, sometimes these state-level protections are more expansive.) And just as federal statutes let people sue for the violation of their federal constitutional rights, states have their own statutes that let people sue for the violation of their state constitutional rights.
States and cities must now pass legislation to ensure that qualified immunity does not apply to police officers and other state officials who are sued in state court over alleged violations of people’s civil rights. That way, if police or other state officials violate a person’s rights in a serious manner, but in a manner that doesn’t exactly match the facts of a prior legal decision as the federal qualified immunity jurisprudence reaffirmed by the court on Monday demands, they can still be held accountable for the pain and suffering they have caused.
Any such legislation must be guided by two overarching principles. First, states should ensure that everyone who has their rights violated by state officials has a clear path to monetary relief through the state courts. Second, states should ensure that the officials themselves are held accountable. Under current law, state and local police departments indemnify officers in more than 99 percent of cases, often amounting to millions of dollars of public funds. We have seen how ineffectual the threat of civil liability is to deter misconduct when officers know taxpayers will foot their bill. Law enforcement and other officials will only be deterred from future bad conduct by a real threat of personal liability.
Some places have already begun to enact new legislation that reforms qualified immunity, but the new laws honor these principles to varying degrees, and three new laws have fallen short. For instance, New Mexico passed legislation in April 2021 that grants individuals the right to sue state and local government when their rights have been violated. This law helps ensure that victims get redress, but does little to deter misconduct on an individual-officer basis. An earlier version of the bill had proposed ending qualified immunity entirely, but lawmakers caved to pressure from law enforcement, and removed the language that would have held officers personally accountable for their misconduct.
California’s reform efforts met a similar fate. Lawmakers in that state also pursued police reform legislation that would have eliminated state immunities for officers, drawing opposition from law enforcement groups. The bill that Gov. Gavin Newsom signed last month removed immunity for just three specific kinds of law-enforcement misconduct: falsifying arrests, failing to provide medical care, and injuring an incarcerated person.
New York City enacted a limited reform in April, curtailing qualified immunity as a defense to unreasonable searches and seizures conducted by the police, but not other constitutional violations by police or other government officials. As in California, this legislation denied too many victims of official misconduct a fair opportunity in court, and ensured that many official wrongdoers won’t be held accountable.
To date, Colorado provides the gold standard for qualified immunity legislation. After the murder of George Floyd, Colorado legislators acted swiftly and decisively, enacting a law in June 2020 that allows individuals to sue officers who violate their rights and explicitly prohibits the qualified-immunity defense. The government is required to indemnify defendant officers, but if an officer acted in bad faith, then the officer has to pay up to $25,000 toward a judgment. In so doing, Colorado satisfied both goals of qualified immunity reform: victims can get redress, and officials who violate the constitution are held accountable.
And while this law is still in its infancy, it has already been invoked by victims of law enforcement abuse, including in a lawsuit challenging a group of white officers handcuffing and holding at gunpoint four Black girls, aged six to seventeen, without any suspicion that the girls had done anything wrong. The law has also helped at least one group of plaintiffs keep their lawsuit moving when it otherwise might have stalled to resolve the immunity issue.
States cannot eliminate qualified immunity altogether, but they can make major progress toward protecting people from being victimized by the kind of unconscionable behavior that has all too often been enabled and protected by the doctrine of qualified immunity. Colorado has proven that meaningful reform is possible and, having been on the books for well over a year, that reform does not equal lawlessness. That makes the experiences of California and New Mexico, where lawmakers capitulated in the face of law enforcement advocacy, all the more disappointing. But reform efforts in new states can learn from these experiences. Good intentions by legislators are not enough; public pressure is needed to ensure that legislators hold firm in the face of inevitable law enforcement pressure to impede or dilute efforts at reform.