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The court has also expressed the concern that individual cops will be bankrupted by judgments. This simply doesn’t happen. To the contrary, governments virtually always foot the bill for police wrongdoing. One study found that officers personally paid only .02 percent of the dollars that plaintiffs were awarded.
The problems with the qualified immunity doctrine are legal as well as practical. Initially, courts weighing claims against officers first had to decide whether the officer had violated any constitutional rights — for example, by using excessive force in violation of the Fourth Amendment. If the answer was yes, they moved on to decide whether the law regarding that right was clearly established. But a 2009 Supreme Court decision effectively eliminated that first step, allowing lower courts to jump straight to the second question, which they usually answered in favor of the cop. This creates a vicious circle: When courts stop considering what police behavior violates the Constitution, they leave both cops and civilians without a clear idea of what sorts of violations are considered clearly established.
Ending or curtailing qualified immunity would not be a cure-all for police brutality. By the time it becomes an issue, the harm has already been done. While holding people and departments accountable is important, it’s even more important to ensure that the harm doesn’t occur in the first place. “Police misconduct is often a systemic problem. These are not just bad apples but bad barrels,” said Joanna Schwartz, a law professor at U.C.L.A. who studies police misconduct. “We should be thinking about how to reduce the harm, not just pay people.”
Systemic reforms include making it easier for departments to fire bad cops and for the public to see clearly how misconduct cases get handled, as well as more aggressive federal oversight of police departments that fail or refuse to fix their own cultures of impunity.
In the meantime, ending qualified immunity has become that rarely seen phenomenon in modern American politics: a bipartisan effort. Both conservative and liberal groups have pushed for its reform or abolition. At the Supreme Court, it’s not just liberal justices like Sonia Sotomayor who see how harmful it is. Justice Clarence Thomas, who normally resides at the opposite end of the ideological spectrum, has also called for revisiting the doctrine.
The Supreme Court started this mess, and it could just as easily end it. But despite a few recent cryptic opinions, meaningful reform doesn’t appear to be in the cards.
The more immediate solution is legislative. Congress is currently considering the George Floyd Justice in Policing Act, a far-reaching bill addressing racial discrimination and excessive force by law enforcement officers. One provision would eliminate the “clearly established” defense and prevent cops from relying on their own belief that their conduct was lawful. Unfortunately, that has become the bill’s main sticking point, as most Republicans have sided with police unions in opposing any liability for individual officers.