An Effort to End Qualified Immunity
"...No legislative body has ever enacted a law to rightfully establish qualified immunity; the law exists because judges created it.'"
By John Latson
With democracies around the world protesting police brutality, various aspects of law enforcement are under strict scrutiny. One aspect of law enforcement being scrutinized in the United States is the legal doctrine of “qualified immunity”. Under this doctrine, government officials are strongly protected by the law from allegations that they violated a plaintiff’s rights. Responding to calls around the nation for changes to law enforcement, current and former athletes from the NFL, NBA, and MLB recently banded together to put an end to qualified immunity.
No legislative body has ever enacted a law to rightfully establish qualified immunity; the law exists because judges created it. Beginning in 1967, the Supreme Court of the United States created an exception for government officials who made mistakes in “good faith” or which didn’t violate “clearly established” rights. The Court reaffirmed qualified immunity in the 80s, ultimately preventing victims of police brutality from pursuing their claims. Even over the last fifteen years, federal appeals courts have increasingly granted qualified immunity to police officers accused of the use of excessive force. However, the tide appears to be turning against qualified immunity.
The most conservative Supreme Court Justice, Clarence Thomas, and the most liberal Supreme Court Justice, Sonia Sotomayor, have both indicated a dissatisfaction with qualified immunity. Sotomayor argued in 2018 that the legal doctrine tells police “they can shoot first and think later.” With the legislature acting slowly, athletes and the sports industry are responding in their own way.
“...[t]he time for debate about the unchecked authority of police is over; it is now time for change. ”
In 2017, Anquan Boldin and Malcolm Jenkins founded the Player’s Coalition, a coalition dedicated to the “collective goal of making an impact on social justice and racial equality at the federal, state, and local levels through advocacy, awareness, education, and allocation of resources.” In support of abolishing qualified immunity, Player’s Coalition reached out to the NFL, NBA, and MLB and obtained over 1,400 signatures on a letter to Congress from current and former athletes and coaches; urging Congress to support legislation which will end qualified immunity, calling qualified immunity an “unchecked authority of the police.” The letter reminded Congress that “[a] legal system that does not provide [recourse for police brutality] is an illegitimate one.”
The letter from the Player’s Coalition requested lawmakers support legislation that would remove qualified immunity from law enforcement officials, and allow citizens to seek relief when a police officer or other government official violates an individual’s legal or constitutional rights. It further acts as a reminder of the grief Americans feel because the government has failed to protect them; and instead protects those who cause them harm. Still, it’s unclear what effect eliminating or curtailing qualified immunity would have on the country.
One possible benefit of curtailing qualified immunity may be the strong incentive counties will have to train, supervise, and discipline their officers. Under modern law, counties may be held directly liable for instances of constitutional violations by police, but a county is likely to escape liability unless a plaintiff can show that the officer violated his or her constitutional rights as part of an established practice or policy. By curtailing qualified immunity, local governments will be more susceptible to lawsuits, so there is more incentive to supervise all officers.
Eliminating qualified immunity may also lead to new types of policing. Suggested methods include: civilian review boards, community policing, bail reform, or demilitarization of police tactics. For example, community policing would require all members of a community to become active members and allies to enhance the safety and quality of neighborhoods. Such a system would move community members to hold each other accountable, allow community members to voice their concerns, contribute advice, and take action they decide is appropriate. Keeping the community responsible for its own policing may stem instances of racial injustice.
However, proponents of qualified immunity fear that curtailing qualified immunity will actually lead to more violations of constitutional rights. There is the possibility that with nothing left to protect police officers from liability, judges will construe constitutional rights violations as acceptable and constitutional conduct.
In conclusion, the Player’s Coalition recently obtained 1,400 signatures on a letter from current and former players and coaches from the NFL, NBA, and MLB. The signatures are part of a push towards eliminating or curtailing the decades-old legal doctrine of qualified immunity. Although police reform may be difficult, with protests around the United States and the world, it’s time. As the Player’s Coalition letter states, “[t]he time for debate about the unchecked authority of police is over; it is now time for change.”
John Latson is a second-year law student at Pepperdine University Caruso School of Law, Treasurer for the Student Body Association, and Treasurer for Pepperdine's Sports and Entertainment Law Society.