As a country we remain deeply divided over many issues, but collective horror at police violence over the past year has spurred many Americans of different political persuasions to call for reform. Few communities have been spared the tragedy of an avoidable police shooting as we saw last October in Philadelphia with the death of Walter Wallace Jr., who was repeatedly shot by two police officers when he was in mental health crisis. Wallace’s preventable death at the hands of police was just the most recent in a long line. The need for accountability for this conduct is obvious.
Unfortunately, here in Philadelphia, the public has little reason to trust the Philadelphia Police Department to hold its own responsible for misconduct. A recent analysis showed that only 1% of civilian complaints presented to the PPD’s Internal Affairs Division resulted in discipline for the officers. If victims of police misconduct want accountability, they are forced to turn to the courts.
As civil rights lawyers, however, we know how difficult it can be to achieve that result. One of the most significant stumbling blocks to our work is the doctrine of qualified immunity, a legal rule created by judges that has left a gaping loophole in the rules that apply to everyone else who causes harm to others when they are doing their job.
Qualified immunity requires a person bringing a lawsuit to prove that their “clearly established” rights were violated—that is, that a Court previously ruled that an officer acted improperly in a factually similar case. Even if a police officer’s conduct is plainly unlawful, they can be shielded by qualified immunity if no prior officer has been sued for identical behavior. For instance, an officer who injures a victim by placing him in an unnecessary chokehold would only face liability if an officer in an earlier case used an unnecessary chokehold under similar circumstances. This rule allows police officers to avoid civil liability, even in egregious cases.
Qualified immunity communicates to police officers that they are above the law and tells them they can act with impunity. Here in Philadelphia, the doctrine of qualified immunity packs a particularly harsh blow in light of PPD’s dismal internal affairs record. Because PPD officers get a virtual free pass from their employers, qualified immunity deprives Philadelphians of the only realistic avenue they have to hold officers accountable.
As recent experience tells us, without accountability, it’s difficult to prevent officers from engaging in misconduct. Recent experience also tells us that there is a growing and broad consensus that police officers should face real legal consequences when they abuse their authority. With every new report of an avoidable death, calls for change have grown.
Federal lawmakers now have an opportunity to answer those calls. Qualified immunity was created by judges, but it can be eliminated through legislation. The George Floyd Justice in Policing Act could do exactly that. The bill, now working its way through Congress, has garnered support from the civil rights community and the broader public because it prevents officers from being treated like they are above the law.
We say that the bill could end qualified immunity because some senators have said they want to change the legislation to allow those rules to stay in place. Instead, they suggest we drop efforts to eliminate qualified immunity or that we replace it with enhanced employer liability—that is, liability for the police departments that employ officers who engage in misconduct. To be sure, allowing police employers to be held liable for officer misconduct is an important and needed step, but it is nowhere near enough to fix the problems that are obvious to anyone. As a bottom line, we need individual officers invested in respecting people’s constitutional rights. That will only happen if qualified immunity is eliminated.
Recent legislation in New York City that ended qualified immunity in certain types of cases proves the point. Shortly after that legislation passed, the NYPD police union wrote to its members advising them to be cautious that they interact with civilians “within the bounds of the law.” Every police officer in the country should receive an advisory like this—and know that the force of law is behind it. In order to make sure this happens, we must keep the Justice in Policing Act intact. Short of that, no set of policies, training, or reporting requirements will allow us to realize the full promise of police reform: ensuring the safety of communities that have suffered for too long.
Jonathan H. Feinberg is a civil rights lawyer in Philadelphia and the Vice President of the National Police Accountability Project. Lauren Bonds is the Legal Director of the National Police Accountability Project.