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The United States has always been and remains infected by systemic racism. If you have any doubts, look at President Trump’s tweets showing a supporter yelling “white power” and his condemnation of a proposed “Black Lives Matter” installation on New York City’s 5th Avenue as a racist statement. As I said in a past article (“Trump Tries to Turn Earth into Bizarro Land”), we are living in Bizarro Land.
It’s a certainty that systemic racism will not be addressed while Trump is in the White House. It is also clear that a Democratic-controlled House and Republican-controlled Senate will not agree on the simplest of police reforms: barring choke holds and no-knock warrants, and repealing qualified immunity — all of which the Democrats support and the Republicans oppose. Of these reforms, the most impactful would be repealing qualified immunity allowing officers to be sued for money damages, including punitive damages, by their victims and victims’ families for choke holds (assault, battery, false imprisonment); illegal entry (trespass, emotional distress); and death (wrongful death).
Qualified immunity is a doctrine created by the Supreme Court (Pierson v. Ray, 1967) that bans federal civil rights suits for damages against individual officers. The doctrine was originally designed to protect law enforcement officials from frivolous lawsuits and financial liability. Starting around 2005, courts increasingly applied the doctrine to cases involving the use of excessive or deadly force, like the killings of George Floyd, Rayshard Brooks, and Breonna Taylor. The doctrine is stopping their relatives from bringing federal wrongful death lawsuits against Derek Chauvin, Garrett Rolfe, and Brett Hankison, who killed their relatives.
In a past life, as a law professor, I published a book, Civil Litigation and the Police, based on an empirical sociological study of nine Southern California police departments. The study explored whether and how officers responded to civil (tort) lawsuits for monetary damages. The data we collected suggested that individual officers are well aware of being sued and that such suits have the ability to impact their behavior.
Based on this study, there is no doubt that criminal convictions, in a court of law, in the deaths of Floyd, Brooks, and Taylor would act as a deterrent to police abuse, as would civil suits for damages. The study was clear that police officers are aware of court decisions regardless of whether they are criminal or civil, with large majorities acknowledging that court decisions had “great influence” on their behavior (81 percent saying court opinions in general are a primary factor in formulating police policy, 85 percent regarding U.S. Supreme Court rulings, 84 percent California Supreme Court opinions).
Qualified immunity only bars suits in federal courts, and the study looked at California state cases. It found that police officers are very concerned about being sued for damages beyond the limits of their professional liability insurance policies — 67 percent said that job security was a primary reason for doing police work; 76 percent said that patrolman’s liability insurance was a necessity; and 64 percent said that a judgment against them exceeding the limits of their insurance policies, which meant substantial out-of-pocket expense, would cause them to “proceed differently if confronted with an identical situation.”
Our data collected from departments with substantial minority communities (African American and Latino) suggested that 51 percent of the officers surveyed would regard a judgment for damages as a stigma against their professional capabilities, with 64 percent saying that exceeding self-defense in making an arrest against youths throwing cans and rocks at them would proceed differently in a similar situation if sued beyond the limits of their respective insurance policies.
Civil suits for monetary damages, dating back to the Babylonians, have been used by societies to both avoid people killing one another in retribution and to control behavior. Its origin in our Anglo-American civil system was the king not wanting to have his nobles, i.e., armies’ leaders, kill each other over slights and quarrels; hence, suits for damages.
Qualified immunity should be viewed in the context of why industries like the tobacco, pharmaceutical, and policing institutions wanting to limit or abolish tort suits. They are afraid of the power and impact of individual citizens suing them for behaviors that injure and kill people. Qualified immunity should be abolished.