Police reform and qualified immunity

Shannon Bohrer

(4/2023) The topic of police reform has been front and center in our national conversations for many years. Following the death of George Floyd the calls for reform grew and then gradually subsided. This was followed with other questionable and problematic deaths Each time the calls for police reform grew and again with the passing of time they subsided. It appears that after horrific events, we elevate our national conversations on proposed police reforms. Then, as time passes, the conversations wane until another tragedy occurs. The latest tragedy, the beating death of Tyre Nichols by five Memphis Police Officers, has re-ignited the conversations and calls for reform. Will this time be different, or will the calls for reform follow the same pattern?

The death of Tyre Nichols was horrific, difficult to watch and difficult to comprehend. If there was ever a case that demonstrated the need for reforms, the films used by the major news media in the reporting of Tyre Nichols case, established that need. Will the Tyre Nichols case be the catalyst for change? This time the probability of change was bolstered with the quick response of the Memphis Police Department to fire the officers involved with Mr. Nichols's death. Additionally, the prompt actions by the judicial system to charge the officers involved, could be an indicator that criminal justice reforms have some momentum. Or again - will the calls for change wane with the passing of time.

The pattern of calling for reforms after horrific events, then little to nothing being accomplished, is not limited to police reform. The mass shootings that we experience on a continuum fits the same pattern. When 20 children were murdered in Newtown, Connecticut, the calls for better gun laws seemed front and center. As one person said, "if the deaths of twenty children does not move the needle, then nothing will." Since Newtown we have experienced additional mass shootings and a few States and the Federal legislature have passed some gun safety laws. So change is possible. Sometimes the changes that are sought occur slowly in incremental steps.

The need for change in our criminal justice system that may seem obvious to many, strangely and conversely seems to frighten others. Overcoming resistance to any proposed changes in the criminal justice community is necessary for significant changes to occur. Some people view the issue of police reform as a binary choice. Maybe they think that the idea of police reform is demeaning to the police - which it is not. Police reform and ensuring the rights of all citizens are not separate or independent goals. Supporting the police and the rights of minority groups is, and should be, aligned with supporting justice and equal rights for everyone.

In the Tyre Nichols case, the resistance to change was expressed in the national news in an inexplicable manner. As horrific as the Tyre Nichols case was, there was push back in an attempt to downplay the seriousness. Tucker Carlson, talking about the Tyre Nichols case, said, "Ashley Babbitt was murdered … more clearly’ than Tyre Nichols." Since Ashley Babbitt was breaking into the capital during an insurrection when she was shot, and Tyre Nichols was driving a motor vehicle before being stopped and then dying from the actions of police officers, Tucker Carlson's comparison is nonsensical. The comparison of a justified shooting to an unjustified beating death of a human is unreasonable and illogical. Overcoming resistance with some people may not be possible.

In fairness to the topic of police reform since George Floyd, a few changes for police reforms have been made. There are close to 150 civilian police oversight boards around the country. The boards generally have limited authority, but their intent is to hold the officers, and the agencies accountable. While the concept is relatively new, the boards appear to have a positive or favorable appearance with the public. Obviously there will always be some push back on both sides. Some in the law enforcement community feel the oversight is not justified, believing they should only be judged by other officers. On the other end, some civilians want more oversight, believing the police ignore poor behavior within their own ranks.

On the federal level congress proposed several bills, including the George Floyd Justice in Policing Act of 2021. The bill passed the house and stalled in the Senate. The sticking point in the bill was the proposal to limit the qualified immunity as a defense liability in a private civil action against the police. Senator Tim Scott from South Carolina said that eliminating qualified immunity was a "poison pill" for law makers. The bill failed to pass.

It does seem strange that limiting qualified immunity is such a large sticking point in that the immunity is limited and only for civil actions. Having a career in criminal justice and listening to lawyers explain the immunity, I would not have thought it would be the obstacle it has become. The immunity is a court related doctrine that gives immunity for all government workers from frivolous lawsuits. When an officer makes a minor error or mistake, or when any government worker makes an unintended mistake, the doctrine prevents the officer of government employee from being sued.

It was always taught that officers that intentionally violate the law, or continually make mistakes, were not protected. However, recent court interpretations of the court doctrine have not followed that theory. Some courts appear to have applied "the doctrine aggressively to shield officers from lawsuits." In a 2019 case a Court of Appeals ruled that police officers, who stole over $225,000 in cash and gold coins could not be sued. The court said the "officers were entitled to "’qualified immunity.’" This ruling was not unique, in that other courts have made similar rulings in cases where police were accused of criminal behavior.

The qualified immunity doctrine was created to protect government workers from frivolous law suits, not to protect them when involved in criminal behavior. The police are supposed to protect the public from criminals, and yet some rulings on qualified immunity have protected the police, after they commit criminal acts - against the public. Maybe qualified immunity should be codified, with provisions that eliminate any civil protections for police involved in criminal acts. Otherwise, not eliminating civil protections for police involved in criminal acts, becomes a poison pill for police reforms.