California's senators should lead the reform of qualified immunity

California's senators should lead the reform of qualified immunity
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Last week, the House of Representatives passed the George Floyd Justice in Policing Act (H.R. 1280). Among other things, the bill would eliminate local law enforcement officers’ ability to use the doctrine of qualified immunity to shield themselves from liability for misconduct. Given the numerous high-profile police brutality incidents around the country in the recent past, now is the time for California’s Democratic senators, Dianne FeinsteinDianne Emiel FeinsteinIf you want Julie Su at the DOL, don't point to her resume Senate Democrats push Biden over raising refugee cap Lawmakers react to guilty verdict in Chauvin murder trial: 'Our work is far from done' MORE and Alex PadillaAlex PadillaPadilla introduces bill to expand California public lands Senate Democrats push Biden over raising refugee cap Hispanic Caucus energized by first Biden meeting MORE, to advance reform of the qualified immunity doctrine.        

From the Rodney King riots to today, Los Angeles has a controversial history with many allegations of police misconduct. According to the Los Angeles Times’ reporting, the L.A. County Sheriff’s Department maintains secret documents on about 300 deputies that are rife with allegations of dishonesty and other infractions. In one report, for example, L.A. County proposed paying $195,000 to settle the case of an officer pepper-spraying an elderly man in the face. The officer initially claimed that the man blocked the path of officers and advanced on an officer, prompting the use of pepper spray. This account was contradicted by security camera footage.    

More recently, the state’s attorney general restricted access to the CalGang database by the Los Angeles Police Department (LAPD). An internal audit found significant misuse of the database by LAPD officers, including the entry of false information, classifying individuals as suspected gang members or associates without reasonable suspicion. LAPD’s entries make up about 25 percent of the entire state gang database, calling into question a quarter of its 80,000 entries. L.A. County’s district attorney filed charges against three officers for filing false reports and fabricating documents. And a group of L.A. residents filed a federal class action case against the city of Los Angeles alleging that the LAPD’s misconduct represented “racial profiling,” noting that the database was riddled with errors and questionable entries, such as the inclusion of one-year-old children, and that Black and Latino men constituted the majority of the database’s entries.        


Indeed, the LAPD’s practices prompted one of the most important cases on police misconduct, and one that needs to be reexamined. In a 1983 decision, the U.S. Supreme Court reviewed the LAPD’s use of chokeholds in a case in which officers stopped a man for a broken taillight and applied the controversial technique, rendering the man unconscious and damaging his larynx. The man argued that the city instructed its officers to routinely use chokeholds even when they were not threatened with deadly force. The court found for the city, reasoning that the man could not prove that he himself was likely to suffer through a chokehold by LAPD officers in the future. Justice Thurgood Marshall delivered a scathing dissent, noting that 16 people had died from police chokeholds in Los Angeles and that 75 percent of those killed were Black residents.        

Unfortunately, the court has further expanded liability shields for police misconduct in the years since 1983. The Supreme Court has developed qualified immunity into a theory that in the court’s own words protects “all but the plainly incompetent or those who knowingly violate the law.” In the words of one leading law review article, “nearly all of the Supreme Court’s qualified immunity cases come out the same way — by finding immunity for the officials.”

Now is the time to reform qualified immunity, a legal limitation on the ability of aggrieved individuals and families to recover for alleged police misconduct. California’s senators should be leaders here. Then-Sen. Kamala HarrisKamala HarrisMcConnell: 'Good chance' of deal with Biden on infrastructure Democrat Nikki Fried teases possible challenge to DeSantis Pavlich: The border crisis Biden said we could afford MORE supported a Senate resolution last year that would have recognized legal and racial inequities in the doctrine of qualified immunity as applied to law enforcement. Sens. Feinstein and Harris co-sponsored a bill last year that would have, among other things, ended qualified immunity for local law enforcement officers.

California should lead the way forward in addressing gaps in how qualified immunity is applied in practice and ensuring that qualified immunity is not absolute immunity for all but the “plainly incompetent.” In the new Democratic-controlled Senate, Sens. Feinstein and Padilla both sit on the Senate Judiciary Committee, which has jurisdiction over bills examining qualified immunity. Given the history of problems associated with police misconduct in Los Angeles in the recent past, California’s senators are well-positioned to drive this reform forward. 

With the passage of the George Floyd Justice in Policing Act in the House, California’s senators have an opportunity to reexamine and reform the qualified immunity doctrine to better serve communities in their state and around the country by bringing fundamental fairness to a broken system.  

David Biderman is a partner in Perkins Coie’s Los Angeles and San Francisco offices. Andrew Kline, a former federal prosecutor, is now a senior counsel at Perkins Coie. Tommy Tobin is an associate at Perkins Coie and a lecturer at UCLA Law.