Debate over police reform continues, calling qualified immunity into question

In the aftermath of George Floyd’s death, calls for more police accountability grew louder. State and Congressional lawmakers have questioned qualified immunity as they push for reform.

The George Floyd Justice in Policing Act would reform qualified immunity, while the Ending Qualified Immunity Act would eliminate it.

The author of the latter, Rep. Ayanna Pressley, D-Massachusetts, said in March, “We must fully end the doctrine of qualified immunity which for too long has shielded law enforcement from accountability and denied recourse for the countless families robbed of their loved ones.”

Legislation has also been introduced on the state level to end qualified immunity, including a bill introduced by Rep. John Thompson, DFL-St. Paul. On Wednesday, the Minneapolis Civil Rights Commission also addressed the issue after it was raised by Commissioner Ashley Gold.

“I don’t think a lot of people realize what it is, and if they did, they probably wouldn’t be about it,” Gold said.

Qualified immunity is a doctrine based on Supreme Court rulings.

“What qualified immunity is — police officers are given certain protections in order to be able to use force as part of their duties,” David Schultz said. “What the Supreme Court has said for the purpose of civil lawsuits is that officers are entitled to use force to protect themselves or the public, including deadly force.”

Schultz is a professor at the University of Minnesota Law School and also teaches political science at Hamline University.

“Starting in the late 1970s, what the U.S. Supreme Court said was that cities can be held constitutionally responsible for the actions of their employees including their police officers and you could sue, in this case under the Fourth Amendment, a police department and an entire city and claim they violated your constitutional rights,” Schultz said. “The theory was it would create an incentive to change police departments.”

Schultz explained the Supreme Court set limits, however, on those lawsuits.

“This ability to sue cities is not unlimited that in fact there is a qualified immunity,” Schultz said. “So long as an officer acted reasonably, that is acted in a way that a reasonable police officer would have acted in that situation, that person would be entitled to qualified immunity under civil rights laws to be able to use force.”

According the Schultz, that has now been incorporated into criminal law.

“To put some boundaries on when an officer can be criminally held responsibly,” he said. “In order to be able to successfully prosecute police officers, that’s the criminal [side] or to hold cities responsible, civically and monetarily for actions of officers, you’ve got to get past this qualified immunity.”

He explained this was a consideration for prosecutors as they pursued charges against Derek Chauvin for the death of George Floyd.

“The prosecution had to show that Derek Chauvin did not act reasonably, was not entitled to qualified immunity and therefore prosecution could go after him for criminal behavior,” said Schultz.

Congressional Republicans argue qualified immunity provides police officers with the necessary protection.

Rep. Jim Banks, R-Indiana, has introduced the Qualified Immunity Act, which would codify the Supreme Court precedent.

While introducing the legislation in Aug. 2020, he said, “Ending qualified immunity is another way of saying, ‘Abolish the police.’ No doubt criminals would love the chance to open endless frivolous lawsuits against the officers who put them behind bars. I’ve heard from many that work in law enforcement that if we strip them of qualified immunity, they’d be forced to quit because they couldn’t afford to serve any longer.”

The League of Minnesota Cities is also opposing the state legislation aimed at eliminating qualified immunity.

The Minneapolis Civil Rights Commission decided Wednesday that community engagement should be the first step.

“I think educating the community is the number one thing we should do here,” Commissioner Andrew Crowder said.

Changing qualified immunity would likely require action from the local through federal level.

“I see this as a pretty monumental thing to change because there’s so many different levels of law to change it,” said Commissioner Mark Stignani. “Action will come through some level of voting at some point so the more people we can educate on this before a referendum, before something that would be either at the state level or the city level or the federal level even, I think that’s helpful.”