Christian Lansinger writes in The Bulwark:
In the post-George Floyd era, police departments have faced intense public scrutiny, leading to slogans like “defund the police” and “ACAB.” Conservatives recoiled and in turn engineered their own “back the blue” sloganeering. But lost in the shuffle is qualified immunity—a judge-made doctrine that shields all government officials from accountability when they violate one’s constitutional rights. AFPI and others have adopted qualified immunity as their poster child in defending the police and ensuring public safety.
But AFPI’s report leaves out a crucial detail:
Qualified immunity does not actually keep Americans safe. Invented by the
Supreme Court in 1982 through what conservatives would normally call “judicial
activism,” qualified immunity is found nowhere in the Constitution or in
federal statutes—judges just made it up. Nonetheless, this powerful doctrine
protects government officials when they engage in unreasonable or even
malicious acts that violate the Constitution (unless the victim can show their
constitutional rights were “clearly established” by an earlier decision
involving materially identical facts—a nearly insurmountable legal hurdle).
This misconduct can come from anyone in government: a mayor and city attorney
who jail a
72-year-old retiree for criticizing the city manager, a child protective
services agent who launches a
junk investigation against parents after they accuse the county’s employee of
sexually abusing their child, or a county road engineer who plays traffic cop and
detains a driver for hours. And this misconduct can relate to any
constitutional right: the First Amendment right to free speech, the Second
Amendment right to bear arms, or the Fourth Amendment right against
unreasonable search and seizure.
Good police officers already have other protections
under the Constitution—specifically, the Fourth Amendment, which already
protects officers who make reasonable mistakes, including in
high-stakes situations like arrests or uses of force. As the Supreme Court
has recognized,
an officer’s mistakes are more likely reasonable when they face “split second
decisions—in circumstances that are tense, uncertain, and rapidly evolving.”
That is, while the Constitution immunizes good-apple officers from liability,
qualified immunity protects the bad apples—the government officials who commit
egregious wrongs against American citizens and violate their oaths to uphold
and defend the Constitution.
In short, protecting qualified immunity is not
necessary to “back the blue,” and AFPI’s own approach reflects this. Earlier
this year, AFPI released another report,
also written by Erickson, with recommendations for supporting police recruiting
and retention. Codifying qualified immunity into federal law was not one of
them. Instead, AFPI suggested political and community leaders “reaffirm their
commitment to the law enforcement community,” provide “officers with realistic
expectations about the job,” and “creat[e] meaningful pathways to career
development.” These solutions would help communities retain a proactive police
force without needlessly providing an escape hatch to dishonorable government
bureaucrats.
Strong, accountable police forces keep Americans safe.
But an unchecked, unaccountable government does not. Rather than codify
qualified immunity into law, state legislators should pass the “Protecting
Everyone’s Constitutional Rights Act”—model legislation from the Institute
for Justice (where I work), which Erickson himself cites at the end of his new
report. This bill would provide a cause of action against governments—not individual
officials—for victims of government abuse. It would allow victims to hold their
government accountable for disregarding the Constitution without holding
individual officials personally liable. This legislation puts Americans—not
government workers—first.
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