What is qualified immunity, and why does it make prosecuting police officers hard?

As the debate over how to achieve police reform continues in the United States following the in-custody death of Minneapolis man George Floyd, a little-known legal defense known as qualified immunity has come to light, adding another element to an already-vibrant national dialogue.

Qualified immunity is a strong civil defense for law enforcement officers and other government agents that protects them from civil lawsuits and other types of litigation for a decision that officer or agent made through their position or job.

While there are some exceptions, including for gross misconduct, qualified immunity is generally a broad defense that for years has successfully prevented officers and agents from being sued because something happened in connection with their job.

The Federal Law Enforcement Training Centers (FLETC), a government agency within the federal U.S. Department of Homeland Security, says the rationale behind qualified immunity “permits officers to perform their duties without fear of constantly defending themselves against insubstantial claims for damages” while allowing members of the public to “recover damages when a reasonable officer would know that the officer unreasonably violated a plaintiff’s constitutional or federal civil rights.”

But proving that violation of a person’s civil rights has proven to be exceptionally hard in court as prior lawsuits have shown.

Take the case of Shaniz West, an Idaho woman who sued after allowing officers to enter her home so they could arrest her ex-boyfriend. Instead of just walking into the home and taking her ex-boyfriend into custody, police lobbed tear gas canisters through the home’s window and other points of entry.

Despite Shaniz giving officers the keys to her home, they never tried it. And when they eventually did make entry, they realized the ex-boyfriend, who was wanted on firearms charges, wasn’t inside. They destroyed Shaniz’s property, coating the inside of her home’s walls with toxic residue left over from the tear gas and making her home inhabitable.

Shaniz sued the police chief, a police sergeant and the town of Caldwell, Idaho in what became known as West v. Winfield. The lawsuit sought to make Shaniz whole by forcing the town to pay for the damage done to her home.

But the town and the officers said they weren’t responsible for the damage because, even though Shaniz had given them the keys to her home and invited them in, their force was justifiable and they were protected through qualified immunity.

“If you sue (to hold an officer accountable in civil court,) you have to prove that there’s a case, on point, in your jurisdiction of an appellate court that’s supervising it all — not just a trial court decision, but a higher-level appellate court that says those exact facts are illegal to do to someone,” Sacramento criminal defense attorney told ABC10 during a recent interview.

Shaniz appealed to the federal Ninth Circuit Court of Appeals, but appellate judges there said there wasn’t any case law to support her claim. She further appealed to the Supreme Court, where her case was one of several that the Supreme Court justices declined to hear.

With the Supreme Court unwilling to hear those cases, it’s now up to Congress or state lawmakers to limit the applicability of qualified immunity in cases involving police officers and other public officials.

At least one state has done just that: On Friday, Colorado Governor Jared Polis signed a landmark police reform bill that, among other things, made police officers personally liable for up to $25,000 in damages if they are found to have violated civil rights during encounters with the public.

The new law also says officers could be subject to criminal liability if they do not follow a strict set of rules regarding how they use agency-issued body cameras. Under the law, police officers in Colorado must always keep body cameras on, unless they need to avoid recording personal information that is not related to a case or if there is “a long break in the incident (or) in administrative, tactical and management decisions.”

In the House of Representatives, a bi-partisan bill was recently introduced called the “Ending Qualified Immunity Act” that would curb the use of that defense at a federal level — something that could have major implications across the country.

The bill, introduced by Reps. Ayanna Pressley of Massachusetts and Justin Amash of Michigan, would amend U.S. Code 42, Section 1983 to “explicitly state that the qualified immunity doctrine…does NOT provide police officers (who) brutalize or otherwise violate civil rights with defense or immunity from civil liability for their actions,” according to a press release.

“Qualified immunity shields police from accountability, impedes true justice, and undermines the constitutional rights of every person in this country,” Rep. Pressley said in a statement. “It’s past time to end qualified immunity.”

Tanya Faison, a founding member of Black Lives Matter Sacramento, agrees.

“There should be clear cut and dry instructions, rules, rights, everything should be very clear cut and dry,” Faison told ABC10 in an interview. “Not subjective. Not easily manipulated.”

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