Police Reform and the Shield of Qualified Immunity

What is qualified immunity? How does it relate to law enforcement and the “defund the police movement?” I provide the following two scenarios to help explain the doctrine of qualified immunity. In reading these scenarios, ask yourself the following questions – Did the officer have a right to discharge his weapon? Was he protecting the public at the time he discharged his weapon? Could the officer have taken a different approach? Was he following departmental policy? Was he following the use of force policy(1)?

Scenario One: Law enforcement officers are chasing a suspect wanted for Grand Theft Auto. He has a violent arrest history so he is considered dangerous. As a result, the officers have their guns drawn, pursuant to the department’s policy. During the chase, they see the defendant run into a yard with five citizens standing around, along with a dog. The officers see the defendant and yell for him to get to the ground. The defendant complies. Because the dog is barking at the officers, one of the officers (agitated that he had to chase the defendant) yells for someone to “put the damn dog up.” No one follows the officer’s request and the officer fires several rounds at the dog. He initially misses, fires again, and kills the dog. Unfortunately, the initial shots fired at the dog killed a six year old boy across the street.  Does the officer have qualified immunity?

Scenario Two: A law enforcement officer responds to a bar in which shots have been fired. The officer is told from dispatch two people inside are presumed dead. As he exits his cruiser, the officer sees a person standing in the doorway of the bar holding a firearm. The person points the firearm at the officer. The officer shoots multiple rounds at the individual, killing him. However, several rounds fired by the officer missed and went inside the bar. The missed rounds fired by the officer killed two patrons. Does this officer have qualified immunity?

The answers to these two scenarios are as complex as the legal concept of qualified immunity and the labyrinth of related caselaw. In plain and simple words, you cannot sue a law enforcement officer for injuries, violations of civil rights (i.e. unlawful detention), or death, which occur during the course of his/her duties. The exception to qualified immunity is also simple. The officer cannot have “willfully violated” the rights of any citizen afforded to them by the Constitution. So, qualified immunity acts as a shield for law enforcement officers.

Where did the idea of qualified immunity come from? The federal statute for qualified immunity is found in 42 U.S.C. 1983 (see Appendix A for the entire Statute). There are two very general concepts to consider regarding this statute. First, any law enforcement officer who acts within their constitutional duties, [“Every person who, under color of any statute…”] deprives anyone of their constitutional rights [“rights, privileges, or immunities secured by the  Constitution…”] can be sued. The definition of “under color of statute” simply means an officer was acting within the responsibilities and duties of a police officer (sometimes referred to as “under color of law”). The second concept  provides an exception for any law enforcement officer acting in good faith discharging their duties. 

So, did the officers in each scenario have a right to discharge their weapons?

In the first scenario, was the officer shooting the dog within his right as a police officer? Did the officer even have to discharge his weapon at all? Was it an accident that a bullet hit and killed the child next door? Or, was it just an act of negligence, depriving citizens who witnessed the shooting, the safety and security in their homes?

In the second scenario, the officer was acting on training and intel. He was told by dispatch that shots had been fired and two patrons were dead. He faced imminent danger to himself when the subject pointed his weapon at him. Also, the public faced continued imminent danger if the officer did not shoot and kill the subject at that instance.

The above two scenarios are clear in their facts. Now, keep in mind anyone can sue anyone, but does it have grounds “or standing” to be heard in a courtroom. The family of the child killed in scenario one would absolutely sue the officer and the police department. There was no need to shoot his firearm. The subject was subdued and taken into custody. More than likely, a judge would agree the family has “standing” to sue. The verdict would be left to the judge or a jury as to how much the award should be.

Scenario two, however, is more difficult for a judge to determine if the families of the patrons killed by the officer’s stray bullets have grounds/standing to sue the department and the police officer. The officer was clearly in his right to use lethal force and shoot the subject. He was acting in self-defense. He was also protecting the community at large and acting within the responsibilities and duties of a police officer. However, he missed several times causing the deaths of innocent patrons. Again, a difficult one for a judge to decide.

The Shooting of Daunte Wright

I write this post on the eve of the Daunte Wright shooting. The facts are more disturbing because in the end everyone will suffer immensely. Mr. Wright was pulled over for what should have been a routine traffic stop because of an expired tag. Mr. Wright’s name was run through dispatch (all part of a routine traffic stop). Police discovered that Mr. Wright had an outstanding warrant. The warrant was for carrying a firearm without a permit and fleeing police. Mr. Wright failed to appear in court to face these charges, so, the Judge issued a warrant for his arrest.

At first Mr. Wright complied with the instructions of the police and exited his vehicle. When he discovered that he had an outstanding warrant, he attempted to get back into the vehicle and leave the scene. Officer Kim Potter, a 26 year veteran of the department, told Mr. Wright not to get back into the vehicle. Her and other officers attempted to keep Mr. Wright from getting into the vehicle. Through the body cam, you can hear Officer Potter yell, “taser, taser, taser.” Just seconds later, you can hear her say, “holy shit, I just shot him.” Mr. Wright was hit with a single shot and attempted to drive away but hit another vehicle.

Officer Potter’s explanation is that she mistaken her firearm for a taser gun. Routinely, police officers are told to carry the taser on their non-dominate side of the gun belt, and their firearm on the dominate side.(2) Also, the taser weighs far less than a firearm. With that being said, sometimes officers do get confused in a moment of excitement and adrenaline.

However, did Officer Potter exceed her judicial capacity? What is the department’s policy in executing a misdemeanor warrant? What is the policy in the use of a taser in circumstances like this? What is the use of force policy? These are questions that a Judge will want to know in deciding if Officer Potter has qualified immunity. 

Officer Potter has been charged with second degree manslaughter. A charge that carries up to 10 years in prison under Minnesota law. She has since resigned from the police force. Daunte Wright died from the single gunshot wound. He was just 20 years old.

Justification for Qualified Immunity

So, what are the justifications for the doctrine of qualified immunity and how did it become part of the judicial landscape? The Supreme Court has outlined four  justifications of why qualified immunity is an important foundation for all civil servants. They are as follows:

• It avoids the expense of litigation by allowing a district court to dismiss suits against officers at early stages in the litigation process. In other words, the lower trial courts can dismiss a lawsuit brought against a civil servant just by reviewing the facts. If the court finds the civil servant acted within the scope of their duties and no constitutional harm was done to the defendant, the court can dismiss the case.
• It assists public officials in requiring them to respond to litigation which diverts energy from their pressing duties. In other words, “I don’t have time for this bull…”
•  The mere threat of litigation will deter qualified citizens from becoming civil servants. This is where the citizen says, “I am not going to do that job. I could get sued.”
• The mere threat of litigation will impede rightful and legal conduct. This was the most important justification for qualified immunity according to the Court. In a majority decision the Court ruled, “The doctrine of qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”(i) 

The Reformation of Qualified Immunity

The idea of completely doing away with qualified immunity has gained traction during the recent episodes of police shootings and the whole idea of defunding the police movement. So, how can this be done? Since Congress created the statute for qualified immunity, it can legislatively do away with it. The Supreme Court, by way of caselaw, has expanded the meaning and scope of qualified immunity and is not likely to overrule its former rulings. Several bills have been introduced in the U.S. Congress to address and end the shield of qualified immunity.

In the meantime, several states and local governments are statutorily removing the benefit of qualified immunity among civil servants. We have seen this in Connecticut, Colorado, New Mexico, and New York City.

Are these new pieces of legislation a threat to law enforcement officers? Will it achieve its purpose? Or, is society reacting to emotional (but by all means rightful) pleas? Many citizens will agree that police departments are a necessary evil. Unfortunately, several police officers and police departments have operated in a zero-base accountability zone. However, as we have seen from this review, qualified immunity is an important aspect of public service. The Supreme Court has expressed this.

Chief Justice Marshall expressed in Marbury v. Madison that constitutional rights bestowed to its citizens are meaningless if civil servants can violate those rights with no consequences. Unfortunately, we have come full circle in the protection of civil servants with the doctrine of qualified immunity. Police officers today rarely receive consequences for their actions which clearly violate a person’s civil rights. Thus, a crisis in confidence has occurred with our most trusted citizens, police officers.

Should we overturn qualified immunity because of bad decisions made by law enforcement? Can law enforcement even operate in an arena for which there is no qualified immunity? As a retired officer, I know the meaning of “policy paralysis.” It is when there are so many rules, regulations, and laws that law enforcement fails to act for fear of being fired, sued, or indicted. We will have to wait and see how law enforcement will operate without the shield of qualified immunity.