New York City removes qualified immunity from police in first major shot in the battle over police protections

NEW YORK CITY, NY – New York City has just become the first major city in the country to end qualified immunity for police officers. Although supporters say the move brings accountability, opponents warn the move threatens to degrade the ability of officers to protect the citizens they serve.

Qualified immunity, first introduced in the 1967 Supreme Court ruling of Pierson v. Ray, protects a government official, including police officers, from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.

In other words, police cannot be held liable for damages when taking actions to protect the public, even when those actions might violate the law. An officer can only be held liable if he or she violates a right of the person.

Qualified immunity is based on the premise that officers need to be able to make split-second decisions about use of force to do their jobs, and law enforcement would be ineffective if the officers personally had to defend themselves from damages for simply doing their job legally.

However, New York City removed that protection from its police officers on Thursday in response to left-wing activists demanding the end of the defense following the killing of George Floyd last year. The calls are being made to end qualified immunity despite the officers allegedly responsible for Floyd’s killing have been arrested and are not protected by qualified immunity.

Speaking in support of ending qualified immunity, New York City Councilman Stephen Levin (D-Brooklyn) said:

“What we are doing is saying the police can’t walk into the courtroom and say, ‘The plaintiff has no right to bring me here because I am immune,’ This is about giving people a right to protect the most fundamental rights in our democracy.”

Under the legislation passed by the city, a new local right against searches and the use of excessive force has been created. The new law says that police cannot use qualified immunity as a defense.  The law will allow people to bypass federal or state laws, which still protect officers under qualified immunity, and sue officers personally for damages.

Opponents of the new law argue that qualified immunity is necessary to allow police officers to do their jobs. Councilman Robert F. Holden (D-30th) said that ending qualified immunity will hurt the police department’s ability to attract good officers:

“Ending qualified immunity will prevent the best young men and women in our city from joining the police force.”

In a time of increased violence across the country, the Police Benevolent Association (NYPBA) said that the new law would “chill the operations of law enforcement” and hurt officers who act in good faith. Union President Patrick J. Lynch issued a statement saying:

“New Yorkers are getting shot, and police officers are on the streets day and night, trying to stop the bloodshed”

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On their Facebook page, the NYPBA wrote a comment attached to a news story about another shooting in the city. The comment read:

“As of yesterday evening, we had 250 shooting victims. Now the total is up to 252 – including another one of Council Member Jimmy Van Bramer’s constituents. How did he vote on today’s anti-police bills? He voted to further restrict the NYPD from keeping NYers safe.”

The National Police Support Fund, a grassroots political organization committed to aligning the interests and needs of police officers with the public concerns within the national political process, said that despite legal claims that qualified immunity offers too much protection to officers, “it’s imperative that qualified immunity remains in place for police”:

“Officers and public officials need qualified immunity to carry out their jobs. Public officials, and particularly police officers, perform vital tasks that may require split-second decisions in stressful circumstances. Taking away qualified immunity could lead to officers being hesitant to act when it is most needed.

“Removing qualified immunity could open up public officials and police to unwarranted lawsuits, in which judges and juries could second-guess split-second decisions and lead to significant costs for cities, police officers, and other public officials.

“Officers must have room to make mistakes or have moments of bad judgment without worrying about being sued.”

The push to remove qualified immunity from police comes at a time when departments across the country are struggling to retain and recruit officers. For example, in Seattle, a mass exodus of police officers leaving the city has left residents vulnerable to crime and violence. In a city plagued by Antifa violence and Democratic calls for police defunding, nearly 200 officers have left the city in a little over a year.

Seattle Mayor Jenny Durkan described staffing concerns and the delays in response time caused by the lack of manpower:

“Seven minutes is a long time when you need somebody right now. And the more officers we lose, the more that number will go up.

“So many people have left the department and we are so hamstrung in our ability to hire back, it is starting to really have risks to public safety and our obligations under the consent decree.”

New York City has fired its first major shot in the battle over qualified immunity, but Democrats in Congress are trying to take the fight national. Threatening policing across the nation, Democrats in both the House and Senate have reintroduced legislation this month that would end qualified immunity, placing police officers in the crosshairs of continual personal lawsuits while trying to do their job.

Rep. Ayanna Pressley (D-MA) in the house, and Sens. Ed Markey, Bernie Sanders, and Elizabeth Warren in the Senate, have sponsored the “Ending Qualified Immunity Act.”

If enacted, the bill would abolish legal protections for law enforcement officers from personal lawsuits originating out of their on-duty conduct.

The proposed bill would remove immunity from police officers but would not remove congressional immunity given to members of the House and Senate. Under congressional immunity, members are protected from personal liability for any action taken “acting in the sphere of legitimate legislative activity.”

Members of Congress are “protected not only from the consequences of litigation’s results, but also from the burden of defending themselves.”

Qualified immunity has been reinforced by the Supreme Court many times. In Anderson v. Creighton, the Court observed that qualified immunity:

“Protects all but the plainly incompetent or those who knowingly violate the law.  We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude [for example] that probable cause is present, and we have indicated that, in such cases, those officials … should not be held personally liable.”

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Author: Scott A. Davis

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