Qualified Immunity: What it is, Why we need it and What happens when it's gone.

What is Qualified Immunity, where did it come from and why do we need it for a civil society?  Let’s first define it, then learn about the history and the law that provides for it and why it is so important to keep it intact.

Removing Qualified Immunity from Police Officers does not “restore accountability for cops” as some have said.  It will only get them killed, make them financially destitute and create a society of unenforced laws.  It will embolden criminals, tie up the court system and make You live in a less safe community.

Police Officers are responsible for enforcing the laws created by legislators.  They may not like the law in the same way that you may not like it either, but unlike you they take an oath to uphold the constitution and faithfully execute the duties of their office without personal preference or favor.

DEFINITION Qualified Immunity was defined in 1871 as a protection for judicial officers who act in good faith and within a reasonable belief and understanding of the law when making decisions within their jurisdiction.  That protection shields the judicial officer from personal civil liability even when their judgment was later overruled by a higher court.  This idea of immunity was later extended to law enforcement in 1967 in Pierson Vs. Ray.

HISTORY In 1871, President Grant directed the Congress to enact a civil rights act with the intent of dismantling the Ku Klux Klan.  This was the first attempt at making the deprivation of one’s rights a crime.  The law, known as Section 1983, prohibited anyone from the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law,” except a judicial officer acting within the jurisdiction of their duties.

In 1967, the case of Pierson Vs. Ray had extended this qualified immunity to law enforcement.  This case originated in 1961 when a group of 15 Priests were headed out on a bus trip from Mississippi to the Great Lakes region in New York. As they were to begin their journey the 12 white Priests and 3 black Priests gathered at a local coffee shop in in Mississippi.  Due to the mixed race of the group and the laws of segregation, they were believed to be causing a public disturbance.  The police responded and directed them to leave.  The Priests refused and four of them were arrested for disturbing the peace, three of them white and one of them black.  The case was adjudicated in a local court and they were sentenced to 4 months in jail and a $200 fine.  Upon appeal to a higher court, the case was dismissed in 1962 and the Priests were determined to not have been in violation of the law they were charged with.

The Priests sued the Police Officers and the Judge seeking damages, alleging that the Police and the Judge violated Title 42 of Section 1983 (known as the Ku Klux Klan Act) by false arrest and unlawful imprisonment.  The jury found in favor of the defendants (Police Officers and Judge) who were determined to have been acting in good faith and within the law as they were trained.  The Priests appealed to the 5th Circuit Court and they found that the local Judge was immune from liability based on the Section 1983.  

The Court also found that the Mississippi Code used in the arrest was unconstitutional and adding, “Mississippi law does not require a Police Officer to predict at their own peril which state laws are Constitutional, and which are not,” therefor extending the Judicial immunity down to Police Officers who are empowered to enforce the law as it is written and understood.

The Appeals Court ruling was then brought before the US Supreme Court that found that a Judge has “absolute immunity” from liability damages, stating “the immunity of Judges for acts within the judicial role is equally well established,” and has been common law since Bradly Vs. Fisher (1872) which was the first case tried after the KKK Act was established.  

The Supreme Court went on to say that Police Officers are not granted “absolute and unqualified immunity”, but they may be excused “from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional on its face or as applied,” similar to a “Police Officer who makes an arrest based on Probable Cause is not liable for false arrest simply because the innocents of the suspect was later proved.”  Enter Qualified Immunity for law enforcement.

Section 1983 (the KKK Act) has only been revised twice since it was originally written (and modestly at best).  The revisions were in 1979 and 1996 and judiciary immunity was upheld both times.  The concept of immunity for judicial officers also continued to extend to law enforcement officials acting in good faith and within the law.  This includes the training a police officer receives and the policy and procedures of the agency for which they work.

Over the past year, the concept of Qualified Immunity for Police Officers has been challenged more than ever.  There is active legislation in Congress that suggests that the extension of Judicial Immunity to Law enforcement is an overreach of Section 1983 and that immunity should no longer be extended to the Police.  Additional legislation also seeks to eliminate “acting in good faith” as a legal defense to a civil suit and that the Officer reasonably believed they were acting within the law, or that the act by the Police Officer was not clearly established and later determined to be unlawful.  

The New York City Counsel, supported by the Mayor, just eliminated Qualified Immunity for the NYPD.  They have said that an individual act of a Police Officer acting within their duties thereof, are now personally and civilly liable even if the actions were within their training, within the department’s policy and procedure and within the law.  If the Officer is sued by anyone that feels depraved of their civil liberties, there is no longer a defense of any kind if the act stated in fact occurred.  

Example:  A police officer responds to a domestic violence call where both the victim and the accused are on scene.  The victim presents with injuries (bruise, cut, complaint of pain, etc.) and therefore a mandatory arrest is made of the accused as required by law.  (I would note that ‘no arrest’ would constitute a dereliction of duty followed by being criminally charged and fired as per the law.)  Then, when the case goes to court many months later and the defendant is found not guilty for any multitude of reasons, the defendant can now sue the Police Officer for a deprivation of rights even though they did everything within the law, policy of the agency and in good faith.  That Officer stands to lose their home, their savings and everything thier family needs to survive.  

WHY WE NEED QUALIFIED IMMUNITY Contrary to popular belief, or what the media, certain politicians and activists want you to believe, Qualified Immunity does not protect “bad cops.”  It actually does the direct opposite. It protects good police officers from frivolous lawsuits and “gold digging.”  It allows Police Officers to faithfully execute their duties without fear of civil liability and preventing them from engaging in a dereliction of duty as a result of that fear.

Qualified Immunity is what allows a police officer to protect you and your family from an imminent threat without having to consider if the suspect will sue them for the arrest.  Qualified Immunity is what allows a Detective to interview a suspect without the fear of being sued because the victim provided bad information.  Qualified Immunity is what allows a Police Officer to arrest a suspected Domestic Violence Offender without fear that the victim will fail to prosecute the case in court.

Without Qualified Immunity, Police Officers will lack the confidence to effectively do their job based on the law, agency policy and their training.  The elimination of Qualified Immunity will lead Police Officers to apathy, dereliction of duty, de-policing and an overall lack of community engagement.  This will lead to a rise in crime, empowerment of criminal gangs and a lawless society combined with vigilantism.  

David Berez is a retired Police Officer and Drug Recognition Expert, having served more than 20 years with the East Windsor Police Department and a total of 30 years in Emergency Services. Following his retirement, Mr. Berez is now the President and Founder of Six4 Consultants, a Public Safety Consulting Firm. Mr. Berez is also a featured columnist, guest speaker and panelist on a variety of Public Safety discussions. In September of 2020, Mr. Berez was trained as a Resiliency Program Officer.

Contact: [email protected] LinkedIn: www.dhirubhai.net/in/david-berez/