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Calls to End Qualified Immunity Boosted by Chauvin’s Conviction

April 21, 2021, 6:37 PM

The rarity of former cop Derek Chauvin’s conviction for murdering George Floyd is reinvigorating policing-reform advocates to press states and local governments to break down a legal shield protecting officers from lawsuits for all but the grossest excesses of authority.

The wave of social justice protests that grew out of police killings like Floyd’s spurred new calls to scrap or severely limit the doctrine known as qualified immunity. Colorado last June became the first state to abolish qualified immunity while New Mexico became the most recent state to outlaw the defense this month. Connecticut has also taken steps to limit qualified immunity. Days before the start of the Chauvin trial, New York became the first major city to end qualified immunity for police officers.

Sixteen other states are considering abolishing or minimizing qualified immunity, according to the Innocence Project.

“The Chauvin verdict has served to highlight just how rare criminal convictions for police violence really are. And it’s clear such verdicts alone cannot force the systemic change we need,” said Alexandra Brodsky, a staff attorney at the nonprofit legal advocacy group Public Justice.

“Among the necessary solutions is abolishing qualified immunity, which will make sure public officials are no longer shielded from accountability in the civil legal system.”

Qualified immunity is a doctrine, created by a 1967 Supreme Court ruling that grew out of a Reconstruction-era law, often called “Section 1983,” that allows individuals to sue the police for violating civil rights by abusing their authority.

Under that interpretation, which the court has consistently upheld, officers can’t be held liable if they exercised their authority in “good faith”—even if it results in a violation—and claims are blocked unless the alleged conduct can be shown at the outset to have violated a “clearly established” right.

“If an officer does something that was egregious and everyone on face value knows that when the victim’s family takes that officer to federal court, they should be able to seek their redress based on the officer’s conduct,” said Shawn Kennedy, information officer of the National Association of Black Law Enforcement Officers and a former sergeant in the Chicago Police Department.

“But the way the doctrine was written, you have to show that this has occurred in the same jurisdiction, almost the same way. Well, if part of the variable is you have to have that first-case scenario, how do you ever have it in that exact way?”

Justice in Policing Act

The wide-ranging George Floyd Justice in Policing Act (H.R. 1280), which would end qualified immunity among other reforms, passed the House on a largely party line vote in March. The bill would overturn the doctrine by stipulating that it can’t be used as a defense in a Section 1983 suit only because the officer was acting in good faith or believed their conduct was lawful, or because the right alleged to have been violated hadn’t been clearly established in the relevant jurisdiction.

The measure also includes other changes to federal policing standards—such as banning choke holds and so-called no-knock warrants—and would use grant programs to encourage changes to state and local law enforcement agencies. It faces uncertain prospects in the 50-50 Senate, where a 60-vote procedural threshold has stopped progress on most controversial bills.

States are free to have their own rules on qualified immunity. “What some states have done is instead of having the victim sue officers in federal court, they have them sue them in the state court because in the state court qualified immunity may not apply,” Kennedy said.

New Mexico Gov. Michelle Lujan Grisham (D) signed a bill earlier this month that would bar state employees from claiming qualified immunity. The law, which takes effect July 1, lets plaintiffs bring complaints against a government agency, which can be held liable for up to $2 million in damages per incident.

When civil rights violations occur, “we as Americans know too well that the victims are disproportionately people of color, and that there are too often roadblocks to fighting for those inalienable rights in a court of law,” Lujan Grisham said in a statement. She said the measure is not anti-police but requires officers to respect constitutional rights.

Justice Department Probe

Though the federal bill is unlikely to move, the Biden administration put new pressure on police Wednesday with Attorney General Merrick Garland’s announcement the Justice Department will investigate policing practices in Minneapolis in the wake of Floyd’s death. It represents a renewed push by the Justice Department to use “pattern or practice” investigations to force police departments to make reforms, a process the Trump administration had abandoned.

“We’re seeing positive changes happening from the municipal level to the Federal level, and we’re even seeing cracks in the ‘Blue Wall of Silence,’” Rachel Pickens, executive director of the National Police Accountability Project, said after the verdict was announced.

“But there is so much more work to be done. The Senate needs to pass the George Floyd Justice in Policing Act, and we need to continue putting pressure on local and state governments to implement common sense and truly impactful police reforms.”

However, some police groups say Chauvin’s conviction show that accountability through the courts is enough and further reforms would only tar upstanding officers needlessly.

“At the most basic, a man lost his life needlessly at the hands of an officer,” Bill Johnson, executive director of the National Association of Police Organizations, said in a statement. “At the same time, the assertions by so many who wish to demonize all police officers because of the actions of one officer have been shown to be hollow.”

He added that just as “due process rights do not prevent the investigation, charging, trial, and conviction of a police officer” ... “neither does qualified immunity.”

To contact the reporters on this story: Adam M. Taylor in Washington at ataylor@bgov.com; Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com

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