Take Away 'Qualified Immunity' As A Shield For Police Misconduct
An op-ed by Terry Gilbert, originally published on cleveland.com.
In the midst of the national conversation about police brutality and racial bias, especially after the murder of George Floyd, the national protests, and this week's stunning guilty verdicts against Derek Chauvin, the legal doctrine of ''qualified immunity'' has been widely condemned as an impediment to achieving legal accountability against police who violate people's constitutional rights. But what is qualified immunity, and why should it be scrapped?
To understand the doctrine, we must consider the Civil Rights Act of 1871, enacted after the Civil War to address the widespread attacks against Blacks by local police and deputy sheriffs, particularly in the South. It allows people to sue officials, including police officers, who violate a person's civil rights by using excessive force.
However, in recent decades, this historic remedy has been substantially diminished by judicially created roadblocks, especially the defense of qualified immunity, protecting police who commit serious misconduct.
The origin of qualified immunity comes from a 1967 U.S. Supreme Court decision to protect police from frivolous lawsuits when they act in good faith. It has evolved to allow courts to determine whether an actual constitutional violation by an officer was ''clearly established'' by prior reported cases with similar facts, not whether the officer's actions were unreasonable or violated best-practice police training or procedures.
Federal courts have dismissed
thousands of lawsuits, preventing victims' rights to a jury trial.
Consider the case of Luke Stewart, handled by our law firm. Luke, an unarmed young African American, was shot five times by a white Euclid police officer in 2017 after two police approached his car on a residential street while he was sleeping. Even though Luke had committed no crime, the police started pushing and pulling him in attempting to drag him out of his car. One of the officers jumped into the passenger seat as Luke began to drive away at a low speed, wondering why a cop was in his car and why he was being attacked. The officer punched, tased, and shot Luke, killing him while his vehicle was heading toward the Euclid police station.
The federal court dismissed Stewart v. City of Euclid, contending there was no clearly established previous case law with the same scenario, probably because no cop had ever been foolish enough to jump into a moving vehicle for no good reason, then overreact with deadly force against an unarmed man.
The officer who killed Luke, along with the city of Euclid, have so far escaped liability. We are seeking Supreme Court review of whether a city can use qualified immunity. While individual officers have relied on qualified immunity, some courts have now extended qualified immunity to protect municipalities which have a track record of inadequate supervision, policies, and training.
This ill-conceived doctrine opens the door for different interpretations by different judges with different judicial philosophies. The bottom line, agreed to by both liberal and conservative legal scholars, is that it is unworkable, confusing, and unfair. Victims should have a jury trial in court, where police officers can present their defense. If police act in accordance with respect for life and act reasonably based on acceptable police practices, they
have nothing to fear. It's as simple as that.
At this point, efforts to convince the U.S. Supreme Court to reconsider qualified immunity have failed. It is now time for Congress to step in. The George Floyd Justice in Policing Act of 2021, passed by the House, includes many provisions addressing policing issues on a national level, but also includes a section abolishing federal qualified immunity. It is major step in addressing policing issues, and should be enacted.
Terry Gilbert is a Cleveland civil rights lawyer with the firm Friedman, Gilbert & Gerhardstein. His firm is representing the Stewart family. Gilbert is the author, with Carlo Wolff, of the recently published ''Trying Times; A Lawyer's 50-Year Struggle Fighting for Rights in a World of Wrongs.''