McClaughry: Qualified immunity and police unionization

By John McClaughry

The pressure is on in Washington and Montpelier to take far-reaching and long overdue action to prevent future police-citizen interactions of the sort that led to the death of George Floyd in Minneapolis.

Last Wednesday in Washington, Senate Democrats mustered 45 votes to prevent even consideration of a reform bill. That produced the familiar partisan gridlock that will likely prevent any reform action until after the November election.

In Vermont, legislators are agreed on mandating police use of body cameras, banning potentially lethal suspect control techniques like chokeholds, and creating a better guide to use of force by police.

John McClaughry

John McClaughry is vice president of the Ethan Allen Institute.

Two large issues, however, remain hotly controversial: qualified immunity and police unionization. A third related issue is aggressive police enforcement of illegal possession of small amounts of controlled drugs. George Floyd had previously been found guilty and did jail time for four low-level drug offenses, three of them involving a gram or less of cocaine.

As part of the Civil Rights Act of 1871, the Republican Reconstruction Congress allowed individuals (notably freedmen) to sue state and local officials, including police officers, who violated their rights. In 1967 the Supreme Court invented the doctrine of qualified immunity. Under this doctrine, police are held immune from liability unless the person whose rights they violated can show that there is a previous case in the same jurisdiction, involving the exact same facts, in which a court “clearly established” that the actions violated the Constitution. That condition drastically reduced the chances of police officers being found liable for any violation of rights.

In 2009, the Supreme Court held that federal courts can dismiss lawsuits against cops without even deciding whether they violated the plaintiff’s rights. Today, overcoming the qualified immunity roadblock has become increasingly difficult.

This term the Supreme Courts received a bunch of petitions that provided an opportunity to revisit that doctrine.  Reason’s Jacob Sullum reports that “The defendants in those cases include police officers who shot a 10-year-old boy while trying to kill his dog; wrecked a woman’s home by bombarding it with tear gas grenades after she agreed to let the cops inside so they could arrest her former boyfriend; knocked out a woman and broke her collarbone by lifting her up and throwing her to the ground while responding to an erroneous report that she had been the victim of a domestic assault; and sicced a police dog on a burglary suspect who said he had already surrendered and was sitting on the ground with his hands up.”

Unfortunately, the Court, over Justice Thomas’s protest, declined to hear any of the cases seeking modification of the qualified immunity doctrine.

On a more hopeful note, on June 9 the 4th U.S. Circuit Court of Appeals ruled that the trial of five West Virginia police officers could go forward. In 2013 the officers shot a schizophrenic homeless man 22 times after stopping him for walking in the street instead of on the sidewalk.

But here’s the dilemma. Cops regularly put their lives on the line to protect and serve in a rough world of criminals committing antisocial, violent and destructive acts. It’s a risky and demanding profession, and society owes its law enforcers some benefit of the doubt in dealing with situations that threaten the lives and property of citizens, as well of the officers themselves.

Further, it’s not possible to imagine and make detailed rules for handling an infinite variety of dangerous confrontations. Nonetheless, a code specifying what sorts of behaviors are out of bounds, intense and continuing training of officers to stay within that boundary, and instilling an awareness of where going too far will deprive an officer of the qualified immunity shield, are important ingredients of a solution. Merely making officers and departments liable for unspecified “egregious violations” is not enough.

The other huge problem centers upon the political dynamics of a police union. Unions are created to negotiate for salaries, benefits and working conditions. But an important concern of the union is to defend its members against charges of misbehavior, and minimizing troublesome outside review of a department’s practices, which laymen cannot be expected to fully understand. If there are going to be police unions — that’s another question — they must come to be alert to what their members do, work to straighten them out where they cross the line, and ultimately discipline irresponsible officers in the union itself.

This will be a bitter pill for many police unions to swallow; but on the other hand, purging bad cops ought to ease the consciences of the responsible union members who cherish the respect the citizens owe them for good service. It would also preserve the reputation of law enforcement in the society that relies upon that profession for public order and safety.

John McClaughry is vice president of the Ethan Allen Institute.

Images courtesy of Public domain and John McClaughry

7 thoughts on “McClaughry: Qualified immunity and police unionization

  1. Anyone who has been a police officer knows there is a police mentality. In recent years the police have become paramilitary. Many departments hire veterans who have been in hot war zones and put them on the streets in a civilized community. Police departments acquire used military equipment to be used against the public. Some of this perhaps has been a result of the degradation of civility in our communities and the lack of states to address career criminals and lawlessness.

    Being a cop is a thankless job. Here in Vermont we hear of felons with numerous previous arrests carrying firearms illegally eventually ending in the murder of someone, then it hits the news. Criminals usually can be profiled due to previous crimes or the way they look and act. However, a person can’t be profiled and the cops hands are slapped for profiling. While the police mission is to enforce laws much of their work is done after a crime is committed.

    Then on the other hand we see 9 officers firing AR15s at a man carrying a BB gun that looks real. The optics of such a shooting while maybe justified scares the hell out of regular people. No knock warrants at the wrong house with people and pets killed or houses destroyed more bad situations that happen everyday across the country.

    Our country has turned into the wild west due to many factors of which the police must adapt to. Police leadership may be an issue followed closely by political forces as well as incompetent politicians. Yet the public has to accept whatever the causes for good or the malfunctions of all the parties involved and either benefit or suffer the consequences. This is just a small fraction of the issues the police, the courts, corrections, the politicians and the public are confronted with as well as the geography, the culture, ethnicity, urban, rural, poor, wealthy or the whole ball of wax.

    Who has the answers, who wants to be a cop, how can this be solved? Most of it can’t, but if people believe that defunding the police is a good idea let that happen first where those who make that decision so they can be the first to experience what they did!

  2. As in any society of population groups, there will be bad actors. The question becomes how to single them out and remove them. And so it is with the police union. Far too many times the union comes to the aide of a rogue cop who for good reason has been suspended or fired. Through “arbitration” the individual is reinstated to repeat this kind of unacceptable behavior. While unions do serve a purpose, their actions should be directed at improving the performance of their members while not protecting the bad actors.

  3. Although I agree with many of the points made above by other commenters I must also say that I have seen a change in police behavior over the past 50 years. Many cops today are more aggressive, more argumentative, and more quick to turn to violent resolutions. They seem to have been trained to take control quickly and by whatever means necessary including becoming very aggressive. They have taken an attitude of “it’s us in blue against them” which has resulted in many good folks losing respect for the police and the police losing the cooperation of the good citizens. The police unions, just like the teachers unions, have got to stop protecting the bad members and allow the losers to be purged for the good of both the cops and the public.

  4. If police officers are routinely subject to termination, arrest, or prosecution for performing their lawful duties, one can kiss law enforcement goodbye. In liberal cities, we see the results. Chicago, Baltimore, Minneapolis, and all the rest. The Minneapolis arrests of all four cops are deliberate overcharges in order to get most of them a not guilty verdict and ignite subsequent BLM riots in time for the election. Those riots are a goal of BLM/Antifa. Police unions are a part of the problem. Why do they protect incompetent or criminal officers? The way it is going, no cop in his/her right mind will confront a criminal of the wrong color without a warrant. Why is that good for black communities? They need to stop BLM cold in their own home towns and kick out the white college Antifa paid protesters.

  5. I don’t think you have all the facts. Qualified immunity does protect the officers from some but not all. When we get sued for putting hand cuffs on to tight. That’s after trying to take a drunk 200+ lb in to custody who does not want to leave the bar and wrestling for 5 minutes trying to cuff him. 2 weeks latter his lawyer shows up and and want to sue for injury to his wrists. I have seen this happen. I don’t care how much training you get when it happens on the street it is fast and violent. If the remove qualified immunity you will see police officers leave as they will fear losing their homes and having their family’s thrown out on the street. Until you have walked the walk don’t try and tell us how to do our job.

    • Yes, you can overstep the bounds and lose your protection, and if that is so, OK. However many of our legislators are almost useless people who never have been exposed to anything real or unpleasant. Well maybe their dinner was overcooked or their weed was stale. They have been hamstringing our police for years in Vermont and I think their idea of overstepping the bounds is actually. really, arresting someone who has committed a crime and is resisting arrest.

    • Spare us the ‘don’t tell us how to do our job unless you’ve walked the walk’.

      As long as your profession is controlled by those who’ve never been a police officer – exactly the way it works in the military too – that simplistic argument just doesn’t work.

      Kindly break out a copy of the Vermont Constitution and read Article 5, which tells you who governs and regulates the internal police.

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