Don’t Abolish Qualified Immunity, Reform It: Policing Expert

Qualified immunity is a “broken legal doctrine,” but reforming rather than abolishing the legal principle, which provides officers with a defense against being sued for violating constitutional rights, will promote police accountability, argues Brian Morganelli in a white paper published by the Institute for American Police Reform (IAPR).

Widespread use of the principle has resulted in few officers being convicted on charges of excessive force.

Morganelli, a research fellow at IAPR, outlines a revised qualified immunity standard that will “protect officers in the rare instances where their actions are subsequently found to have inadvertently violated constitutional rights, but preserve plaintiffs’ ability to vindicate their constitutional rights when violated.”

Based on four months of research and insights from policing officials, criminal and civil law attorneys, and community leaders, Morganelli proposed four major changes that could form part of new legislation.

First, the current standard for pleading qualified immunity from allegations of unlawful use of force—the belief by an officer that their life was in danger—would need to be more narrowly defined and rigorously applied.

”That would reduce “the overly granular analysis that plagues the current qualified immunity doctrine,” Morganelli wrote.

Second, Morganelli recommends that courts decide whether an officer’s alleged act actually violated the Constitution. Suggesting that courts can otherwise enable official misconduct, he wrote: “The current Pearson standard, which permits courts to skip over the constitutional question, has allowed courts to evade answering constitutional questions and may be responsible for the recent upward trend in grants of qualified immunity.”

Morganelli also advocated a reimagined qualified immunity standard that prohibits immediate “interlocutory” appeals of denials of qualified immunity in the middle of a case.

These appeals, which some officers make use of, “upset the balance in litigation” between plaintiffs and officers by stretching out litigation timelines and front-loading costs to less-well-funded plaintiffs facing uncertain jury verdicts, he asserted

“Especially as qualified immunity has become more of a liability shield rather than a case management tool, the ability for officers, and only officers, to take interlocutory appeals has thus become a unilateral litigation tactic rather than an integral component of a litigation immunity as originally intended,” he writes.

Morganelli’s final proposal concerned victims’ rights.

He recommended placing “backstop liability” with the law enforcement agency that employed the officer.

“The victim of the rights violation should have recourse against the officer’s employer if the officer receives qualified immunity, so that the victim does not bear the costs of the violation,” the paper said/

Morganelli acknowledged that qualified immunity frustrates victims of police misconduct — as well as judges, legislators and attorneys — and has safeguarded officers who committed “egregious wrongs.”

Such abuses, based on real cases, ranged from police officers who seized money pursuant to a warrant to one who mistakenly shot a child in the leg.

However, he maintained that reform, rather than outright abolition, was important to that qualified immunity remained a shield in the “rare cases” where officers deserved protection.

His proposals, he argued, align with the Institute for American Police Reform’s standards that “police are essential” and “so is reform.”

“These changes,” Morganelli writes, “will improve police accountability and restore public faith that officers are not above the law, without demonizing officers [who make] tough decisions while serving their communities.”

Meanwhile, the Supreme Court last week agreed to hear a case that challenges the virtually absolute protections enjoyed by federal law enforcement officers.

The case arises from a 2014 altercation between a U.S. Customs and Border Protection agent and the owner of a bed-and-breakfast on the Canadian border,  who claims the agent violated his Fourth Amendment rights when he entered his property and pushed him to the ground as he pursued a guest, USA Today reported.

Until now, the High Court has avoided the issue, but it is one of several similar cases pending.

To access the full IAPR paper, click here.

Eva Herscowitz is a contributor to The Crime Report.