“It makes it easier if someone has a concern to bring a legal action, but it does not put the individual financial penalty on the officer,” said de Blasio in an interview on WNYC’s The Brian Lehrer Show. “It puts it on the department and the city, and that’s what I was comfortable with.”
Qualified immunity requires people who sue police for violating their rights to prove that a court with jurisdiction over the police in that area had previous addressed nearly identical facts in a prior lawsuit and found that the actions of police were unlawful. The judicial doctrine makes it extremely difficult to sue police—especially in novel circumstances such as when police deploy new weapons or tactics.
“Qualified immunity was established in 1967 in Mississippi to prevent Freedom Riders from holding public officials liable even when they broke the law,” said New York City Council Speaker Corey Johnson, who applauded the measure’s passage. “Rooted in our nation’s history of systemic racism, qualified immunity denied Freedom Riders justice and has been used to deny justice to victims of police abuse for decades. It should never have been allowed, but I’m proud that we took action today to end it in NYC.”
The doctrine is court-created, and the U.S. Supreme Court has approved it in numerous decisions. Despite mounting public pressure nationwide to curb the doctrine, the Supreme Court and other courts have recently signaled an unwillingness to address the issue. The U.S. Court of Appeals for the Sixth Circuit recently granted qualified immunity to police officers who beat and arrested a man for standing outside his own house.
Although intended to protect government officials from frivolous or vindictive litigation, qualified immunity has frequently resulted in the dismissal of meritorious claims. The doctrine was used to shield two police officers who stole $225,000 while executing a search warrant, another officer who shot a 10-year-old boy, another who shot a 15-year-old youth, an officer who ruined a man’s car while performing a pretextual search for drugs, two officers who had their police dog bite a surrendered suspect, an officer who caused permanent damage to a man by kneeing him in the eye between 20 and 30 times, and a prison guard who hid while a prisoner raped a nurse.
The elimination of qualified immunity will only apply to lawsuits brought under local statutes. Absent action by Congress or the federal courts, qualified immunity will remain in place in the federal courts.
It seems unlikely that a strongly-divided Congress will soon take action to eliminate qualified immunity. In June 2020, former Rep. Justin Amash, a Libertarian from Michigan, introduced a bill to end qualified immunity for state actors. The bill had tripartisan support, yet the House was never allowed to vote on it. Amash’s co-sponsor, Rep. Ayanna Pressley (D-Mass.), reintroduced the bill in March 2021. Another measure, the Justice in Policing Act, was recently passed by the House and would eliminate police qualified immunity. It is unlikely to pass the Senate if the filibuster remains unchanged.
For now, local measures, like the one in New York, will probably bear the most fruit. That change removed qualified immunity for the 36,000 officers in the nation’s largest police force.
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