The Supreme Court’s expansive interpretation of qualified immunity leads to perverse results, reported the Boston Globe.
Officers who violate Americans’ First Amendment right to
peaceful protest can essentially immunize themselves from accountability by
arresting demonstrators for disorderly conduct or resisting arrest — over-used
and easily trumped-up charges.
The court’s interpretation of the law undercuts civil rights
protections enacted by democratically elected legislators, and it undermines
efforts to demand reform. Qualified immunity incentivizes misbehavior that
skirts the law. And it sends precisely the wrong message to police officers
whose duty it is to serve their communities.
Now is the time for decisive legislative action.
The Supreme Court had an opportunity to review qualified immunity
earlier this year and declined, despite a powerful dissent from conservative justice Clarence Thomas. The liberal
justices Sonia Sotomayor and Ruth Bader Ginsburg urged the Court to reexamine the protection in 2018,
writing in their dissent (from a majority decision that exonerated a police
officer in a shooting) that it “sends an alarming signal to law enforcement
officers and the public. It tells officers that they can shoot first and think
later, and it tells the public that palpably unreasonable conduct will go
unpunished.”
The George Floyd Justice in Policing Act, passed by the US
House of Representatives on June 25, would have ended qualified immunity for
police but is languishing in the Senate.
At the state level, Massachusetts has a chance to succeed
where federal lawmakers and judges have failed. The police reform bill advanced by the state Senate would
limit qualified immunity under state law such that lawsuits could proceed, and
officers could be made to pay for wrongdoing. Police would continue to be
protected in cases where no reasonable officer would have known that the
conduct in question would violate an individual’s rights. And municipalities
could still choose to indemnify officers found liable in courts of law.
This approach strikes the right balance. The Senate bill
would not end qualified immunity, which has value as a tightly controlled
protection against frivolous lawsuits, but it would reduce perverse incentives
for officers, and it would promote the accountability owed to all citizens in a
constitutional democracy like ours.
Officers who know they — or their department — could be sued
and forced to pay for wrongdoing would behave differently. They would think
twice about using excessive force against the George Floyds of the world, who
are protected by the Fourth Amendment from unreasonable searches and seizures
and entitled to equal protection and due process. And officers would be less
inclined to assault Americans exercising their First Amendment rights.
This nation is devoted to freedom, to combating racial
discrimination, and to making government accountable to the people. Legislators
today, like those who passed landmark civil rights legislation more than 50
years ago, must take a stand for equal justice under law. Shielding police
misconduct offends our fundamental values and cannot be tolerated.
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