The Legal Protections Shielding Police Taken Up By State Legislatures

When Portland Mayor Ted Wheeler visited his city’s protests on Wednesday night, demonstrators posed a series of questions to him. The first? Whether he supports getting rid of qualified immunity for police officers, an issue that has been a growing priority for Black Lives Matter activists who want to see it eliminated.

“I am opposed to qualified immunity,” Wheeler told the crowd. “We're going to get rid of it. To do it, we have to work with our state legislature.”

Lawmakers in Oregon, like those in several other states, are now debating provisions that would revoke or limit the protection. Qualified immunity is a legal doctrine that holds government officials cannot be held liable for violating a person’s rights unless courts have previously ruled that the same conduct was illegal or unconstitutional. While the U.S. Supreme Court originally developed the doctrine, it also has been adopted by state courts, which is where state legislatures can make changes.

For police officers, and the government agencies that employ them, qualified immunity often means that lawsuits cannot be brought against them for behavior that is not “clearly established” as illegal or unconstitutional by a previous case. 

Debates over the issue have gone on for hours in several state legislatures this week, reaching late into the night in some chambers. Proponents of revoking the protection say that it has shielded too many officers from legal repercussions for their actions and prevented victims of police brutality from obtaining justice. 

Police unions and other opponents to the bills argue that the measure is necessary to protect officers from frivolous lawsuits. Local and state governments also have a stake in these debates, as they are usually on the hook for payouts if a plaintiff wins in a lawsuit against a police officer, as Lisa Sorenen with the State and Local Legal Center has noted.  

In June, Colorado became the first state to pass legislation banning qualified immunity as a defense in lawsuits brought against police officers in state court. The new rules don’t affect claims filed in federal court, but lawmakers say it is a start. “We cannot wait any longer to knock down institutional racism,” Gov. Jared Polis said at the bill signing.

The Supreme Court declined to consider multiple challenges to qualified immunity in June, shutting down one avenue for changing the doctrine at the federal level. This was a blow to advocates who had hoped the high court would take up one of the cases, as many lawsuits against police are filed in federal court, typically arguing that officers committed civil rights violations.

There are now several bills in Congress that take aim at the legal doctrine—ranging from ones that would eliminate qualified immunity for all state and local government employees, including police officers, to those that would end it for all law enforcement, including federal officers. The likelihood of their passage is minimal, though, as both Republican lawmakers and President Trump have said the measures are a “non-starter” for police reform packages.

In the absence of federal action, more state legislatures are following Colorado’s lead and considering proposals to limit qualified immunity within their own state borders. 

Two bills before the Massachusetts state legislature take different approaches to chipping away at qualified immunity. A Senate proposal would limit the scope of qualified immunity by allowing civil lawsuits against police officers if it can be proven that the officer “reasonably knew” that their behavior broke the law. A House proposal is included in separate legislation that would create a certification process for police officers; should that happen, qualified immunity would be revoked for officers who have been decertified on the basis of misconduct.

A decision on which of the proposals to push forward, if any, will have to come soon—the Massachusetts legislative session is set to end on July 31, though lawmakers are in talks to extend the session to deal not only with police reform issues, but also to approve an overdue 2021 budget.

The Massachusetts Police Union has repeatedly expressed opposition to potential changes and said in a statement that the legislature is being rash because the issue of qualified immunity is “so complex that any decision must be hashed out by legal scholars, academics and members of the judiciary.” 

The ACLU of Massachusetts, by contrast, said that the efforts to limit qualified immunity do not go far enough, and that “the proposed language in the [House] bill does not remove existing barriers that prevent victims from holding police accountable.” 

Similar battles are playing out across the country, pitting police union leaders who say the bills have moved too fast against legal organizations and activists who say that more states should follow Colorado and eliminate the legal doctrine entirely.

In Connecticut, a police reform package has been vehemently opposed by the union representing the state police, with much of the criticism rooted in a provision to curtail qualified immunity. Police have protested outside the legislature during debates, with Sgt. John Castiline, the president of the Connecticut State Police Union, telling an assembled crowd on Thursday that “if you vote yes for this legislation as one of our legislators, in my opinion, you can only be one of two things: you’re either a cop hater, or you’re brain dead.”

Republicans proposed an amendment in the House to remove the qualified immunity language. After an all-night debate that ended at 9 a.m. on Friday, the police reform package passed with the measure limiting qualified immunity intact; the bill now heads to the state Senate.

During debate, Rep. Steven Stafstrom, a Democrat who helped write the bill, contested the claim that those who supposed the measure hate police. “This bill before us is not anti-cop,” he said. “We understand change is hard, but change is often necessary.‘'