With law enforcement reform a lasting hot ticket topic for lawmakers, policy experts and the public, the possibility of qualified immunity may soon become impossible or at the least much more difficult to attain by officers who are the subjects of civil rights violation cases.
Under current law victims of police violence must fight for their chance to be heard in court; the plaintiffs must be able to prove that the officer violated a constitutional right, and that the constitutional right was clearly established when the offense occurred. Without proof of both of these, the officer is granted "qualified immunity" and the victim loses their chance to see their alleged offender stand trial.
Some of the allies for the effort to reform qualified immunity have been unexpected. U.S. 5th Circuit Judge Don Willett, a staunch conservative in his rulings historically, has become frustrated with the qualified immunity doctrine.
Don Willett
| File photo
Willett shared his exasperation in a 2018 opinion on a case where a doctor's office was searched without a warrant. The judge said that the doctor's civil rights had been violated when law enforcement searched his office without a warrant and without him being present, but that the violation of his rights "eluded vindication."
The judge stated that the "entrenched, judge-made [qualified immunity] doctrine” seemed “Kevlar-coated” against reform, and “smacks of qualified impunity."
Qualified immunity has left civic damage, Willett said.
“Count me with Chief Justice Marshall: 'The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right,'" Willett wrote.
Willett isn't the only judicial official to give this issue some attention. Arif Panju from the Institute of Justice told the Lone Star Standard that a simple, yet profound principle drives the effort to reform qualified immunity: "if people must follow the law, then government must follow the Constitution."
"Under qualified immunity, government officials can only be held accountable for violating someone’s rights if a court has previously ruled that it was 'clearly established' those precise actions were unconstitutional," Panju said. "If no such decision exists – or it exists, but just in another jurisdiction – the official is immune, even if the official intentionally violated the law."
Panju suggested that reform incorporate the longstanding respondeat superior doctrine, in which an employer is liable for an employee's behavior; the same principle, he said, should be applied the government as an employer of law enforcement officers just as it is to private businesses.
Urban Reform Institute President Charles Blain agrees that accountability for police officers would make significant strides in combatting excessive force, according to the Houston Republic.
Judicial officials are not the only ones calling for improvement to qualified immunity. A University of Houston poll found that almost three-quarters of all Texans support immunity reform.
Last year U.S. Sen. Mike Braun (R-Indiana) introduced the Reforming Qualified Immunity Act, which was lauded by several lawmakers but stalled out in committee consideration.
“Long-lasting, meaningful reform starts with fixing qualified immunity to protect the rights of citizens secured by the Constitution while protecting good police officers,” Right on Crime at the Texas Public Policy Foundation director Derek Cohen told Lone Star Standard. “Sen. Braun’s bill is an essential step in ensuring it is incumbent upon states and municipalities to properly train and equip their police.”