With all of the turmoil around the country occurring in response to the tragic killing of George Floyd in Minnesota, there is a demand for policy answers to the problem of police misconduct. Understanding how the law - by way of grants of so-called “qualified immunity” - currently promotes the unreasonable use of force by police officers is a good starting point on the path to reform.
For years, one of the most important avenues for holding police officers accountable has been civil rights lawsuits. Under these statutes, in police misconduct cases, officers and police departments could be held liable for the violation of the civil rights of Americans by the use of unreasonable force.
Unfortunately, the ability of such lawsuits to usefully deter police misconduct has been drastically reduced by the judicially-created doctrine of “qualified immunity.” Found nowhere in the law authorizing civil rights lawsuits, 42 USC § 1983, the doctrine prevents many cases of illegal conduct by police from even progressing to a hearing in front of a jury.
Here’s how the doctrine works: if a civil rights plaintiff can’t identify a case “clearly establishing” that the police conduct in question is against the law, then courts will grant the defendant police officers immunity from prosecution - or, “qualified immunity.” And this precedent establishing police misconduct must have considerable specificity. For instance, if a correctional officer pepper sprayed an inmate in a prison without cause, the case cited to rebut that officer’s qualified immunity can’t be one finding that police officers may not tase someone at a traffic stop for no reason.
Believe it or not, a Fifth Circuit Court of Appeals granted an officer qualified immunity in this exact scenario in McCoy v. Alamu earlier in 2020. The court found that the plaintiff alleged facts that a reasonable jury could find that excessive force was used. But the court went on to grant qualified immunity anyway because the right not to be pepper sprayed for no reason was not “clearly established” despite caselaw in the Fifth Circuit holding that a prison guard may not punch an inmate for no reason and that a police officer may not tase a nonthreatening arrestee at a traffic stop. As Judge Costa put it in his dissent, “Despite recognizing that an unprovoked assault violates the Constitution, the majority grants the guard immunity because we have not decided a similar case involving pepper spray.”
The result is that civil rights plaintiffs are not able to get to a jury even when judges agree the conduct alleged, if proven, would be illegal, if a court has not already found the challenged conduct to be illegal. This catch-22 prevents the law on excessive force from being developed and allows police misconduct to go on without the accountability that civil rights lawsuits are supposed to provide.
In effect, qualified immunity is acting as an unintended subsidy for police misconduct. Normally, subsidies are designed to increase the provision of under-provided goods or services to the benefit of society. The Supreme Court justified qualified immunity in Harlow v. Fitzgerald on the grounds that it prevents over-deterrence in the discharge of public duties—but the flip-side of over-deterrence, is just the under-deterrence of bad behavior by police.
It is time for the Supreme Court and Congress to recognize that society is not better off subsidizing the unreasonable use of force by police officers. There are a growing number of voices from across the political spectrum questioning qualified immunity, and the Court is considering several cases for possible review on this issue. But Congress need not wait. They can change the law any time by amending 42 USC § 1983 to clarify there is no immunity for police officers that engage in unreasonable force.
Ben Sperry is Associate Director of Legal Research at the International Center for Law & Economics, where he focuses on the intersection of civil liberties and government regulation.