In Defense of Qualified Immunity

By Tom Cotton

Wednesday, October 27, 2021

 

Qualified immunity is essential to effective and diligent policing. It shields good police officers from bankruptcy while still subjecting individual bad actors to personal financial repercussions. Any effort to abolish or significantly curtail this indispensable protection is a veiled attempt to defund, defame, and disarm the police in the midst of the worst violent-crime wave in a generation.

 

Qualified immunity safeguards police officers from personal lawsuits, unless they engage in behavior that they reasonably should have known violated a citizen’s rights. This protects officers from malicious lawsuits that would otherwise financially cripple them and hollow out departments.

 

Shielding civil servants from vindictive personal lawsuits is a common practice. Most government employees enjoy the same or similar protections. Park rangers, DMV clerks, judges, sanitation workers, and elected officials are all granted some level of immunity — despite the fact that none of them have to make nearly as many split-second and life-changing decisions as police officers.

 

Contrary to the misinformed and disingenuous arguments of critics, qualified immunity does not elevate police officers above the law, nor does it make it impossible to sue an officer for violating your rights. It is, by definition, “qualified,” limited, and conditional. As the Supreme Court held in 1986, it does not protect “the plainly incompetent or those who knowingly violate the law.” A rogue officer who brutally beats a suspect or manufactures evidence, for example, can be held personally liable and sued for his actions.

 

Qualified immunity leaves ample room for accountability, and plaintiffs regularly prevail in court. In 43 percent of cases alleging excessive force between 2017–2019, courts held that the officers’ unreasonable actions placed them outside the bounds of qualified-immunity protections.

 

There are also many other ways to hold officers to a high standard and get justice for victims of police mistakes and malfeasance. Officers who violate department policies can be disciplined or fired, and those who commit crimes are criminally prosecuted just like anyone else. Victims of police errors or crimes also often receive financial compensation from the department or by suing the city government. Personal lawsuits are far from necessary to ensure justice and accountability.

 

While some activists have attempted to use the tragic death of George Floyd as a hook for their anti–qualified-immunity activism, they ignore that the officer involved, Derek Chauvin, faced criminal prosecution for his actions and Floyd’s family received a $27 million settlement from the city. In fact, the Chauvin case proves the opposite of what critics claim.

 

Eliminating qualified immunity would result in far less accountability and democratic control over law enforcement. Without this protection, police would be forced to procure private insurance against personal lawsuits. This would not only increase the cost of policing but would also put insurance companies in a position to dictate enforcement practices and activity. Insurance companies would inevitably demand that states and cities curtail policing practices that expose officers to higher liability, in order to avoid higher costs and risks for the company. Insurance executives would thereby undemocratically shape public safety and set policy on behalf of Americans living in dangerous neighborhoods. All the while, plaintiffs with legitimate claims would have to face off against insurance-company lawyers — who are motivated by profit, not justice or fairness.

 

In all likelihood, the practical result of eliminating or significantly curtailing qualified immunity would be fewer police, less enforcement, and more crime. This is the true goal of most critics of qualified immunity. They are seeking to covertly “defund the police” without ever saying those words. They must not succeed.

 

When police officers strap on their guns and vests, and put their lives at risk to protect the people in their community, they shouldn’t have to worry about financial ruin just for doing their job. We should protect those who protect us — and that means protecting qualified immunity.