Should we end Qualified Immunity for government workers and police officers?
Police Officer misconduct cases have come into the news very recently and now with cellphones and various other mobile recording devices, it is likely that these incidents and potential litigation, outside of possible criminal charges against the officer could develop. Prior to beginning any litigation directed at officer misconduct, however, a potential Plaintiff must overcome a legal doctrine known as Qualified Immunity. This is a Federal doctrine which developed after the Supreme Court case of Harlow v. Fitzgerald.
Qualified Immunity shields all government workers from civil lawsuits arising from constitutional right violations. Some believe that Ending qualified immunity is the best solution for both law enforcement and the general public. Some even believe that this legal doctrine damages the trust between the public and police and offers unfair protection to police officers who need to be held accountable.
Some states have already taken action, Colorado for example, recently enacted a law known as Enhance Law Enforcement Integrity Act. This created a new form of civil action that allows Colorado residents to sue police officers and denies officers the ability to use any immunity as a defense in those cases. This law allows victims to seek damages in State Court as opposed to Federal Court where they would have otherwise sued the officer under Section 1983 of the Federal Civil Rights Act. The state of New Mexico in 2021 passed similar legislation and even New York City’s largest Municipal Police Union have quietly endorsed eliminating qualified immunity to encourage officers to obey the law.
The institute for justice has created mild legislation, which all states and municipalities can adopt, known as Protecting Everyone’s Constitutional Rights Act (PECRA). This proposed legislation holds agencies, municipalities, and states financially liable, but not the individual offender, which accomplishes two things.
- Places the burden of staffing vital government positions with workers who take constitutional rights seriously.
- Forces government officials to execute their duties appropriately.
As the law stands now, government workers, which includes police officers, can only be held accountable for violating someone’s rights if a Court has previously ruled that it was “clearly established” that those actions were unconstitutional. If no such decision exists, or exists in another jurisdiction, the official is immune even if that official intentionally or unreasonably violated the law or the constitution.
The burden to establish that qualified immunity does not apply falls on the victim and all a government official must do is invoke the doctrine. If a victim can‘t persuade a Court that qualified immunity should not apply, the case is dismissed.
The 1978 case of Monell v. Department of Social Services, however, changed absolute immunity for public entities and held that they can be held accountable for actions of its employees, (including police officers), if the actions alleged are unconstitutional pursuant to a policy statement, an Ordinance, regulation or decision officially adopted by officers. The Monell case creates a cause of action for damages against state and local governments for violations of the US Constitution and laws. Prior to the Monell decision, municipalities were so immune from lawsuits that very few if any police departments purchased insurance.
Today Monell claims are frequently associated with policing or jail operations such as excessive force, unlawful search and seizure, false arrests, lack of due process or conditions of confinement. Monell claims are not limited to law enforcement and carry over to employment related claims against municipalities alleging a department policy or practice which discriminates against an individual or group.
The Plaintiff has the burden of proof in these cases and to meet that burden of proof he or she will typically, through their attorney, make a public records request for police and training policies and conduct depositions of multiple staff members to determine if there is a frequency of alleged behavior to support the Monell action.
Here are the important issues to remember about Monell claims:
- It allows Plaintiffs to sue municipalities for unconstitutional policies and practices which led to an incident that harmed an individual group.
- Employees may be sued individually for misconduct.
- They may be related to law enforcement or employment cases.
- They are not vicarious liability claims, but rather a constitutional violation from which a jury could infer was an accepted practice within a municipality.
- Victims may receive compensatory and injunctive relief (policy change).
- Municipality, if found liable, is exposed to damages in the form of punitive damages and reimbursement of Plaintiff’s legal fees.
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