New York Police Union Tells NYPD End Of Qualified Immunity Will Force Officers To... Act Lawfully
One of the NYPD's unions -- the Sergeants Benevolent Association (SBA) -- is feeling ways about stuff again. Last month, the New York City Council passed a number of police reforms which included taking away qualified immunity as a defense in civil lawsuits filed in local courts. The bill has yet to receive the governor's signature, but the SBA is already making its unhappiness known.
The SBA issued a statement (via its lawyers) about the supposed downsides of giving the public a fighting chance in civil rights lawsuits. And in doing so, it has inadvertently generated a few arguments against qualified immunity, as Jay Schweikart points out at Unlawful Shield.
What was written as a cautionary advisory about the changing legal atmosphere is instead an unforced error that shows how often cops are protected by this immunity even when it's clear they've violated rights. First, the SBA restates the doctrine's intent:
Qualified immunity means that government employees are immune from lawsuits if they acted reasonably and not in violation of a “clearly established statutory or constitutional right.” It is designed to protect all government employees and officials from lawsuits and liability when they perform their duties in good faith and within what one reasonably believes to be the scope of existing law.
But then it skips right past all the case law that shows the doctrine protects plenty of bad faith actions and unreasonable officers. As Schweikart notes, truly reasonable officers know where the Constitutional lines are drawn and have no need to worry about not being protected if sued.
Officers who are genuinely acting in good faith aren’t violating anyone’s rights in the first place, so by definition, they don’t need qualified immunity to protect them. By suggesting otherwise to their members, these unions are engaged in reckless, dishonest fearmongering.
And that's where the SBA letter veers into an unintended endorsement of ending qualified immunity. Cloaked in language that suggests law enforcement officers should do less law enforcement until the legal pendulum swings firmly back in their favor, the SBA explicitly tells officers how to avoid being sued. And it's a really simple fix that doesn't need to rely on deliberate work slowdowns or underenforcement.
As a direct result of the passage of this law, and the unavailability of the defense of qualified immunity under its provisions, we advise that you proceed with caution when taking any police action which could lead to physical engagement with any person, and avoid physical engagement to the greatest extent possible while also assuring your own safety and the safety of others. Also, you are strongly cautioned against engaging in any stop & frisk (unless doing so for your own or others’ safety), search of a car, residence, or person unless you are certain that you are clearly and unequivocally within the bounds of the law . . .
How hard is that to figure out? The Constitution has been around for a long time. While there are still some areas unexplored due to tech developments, it's been mostly clear for years how to police the public without violating citizens' rights. That officers still choose to operate outside the bounds so frequently makes it clear qualified immunity has shifted more power to the already-powerful, rather than shield the small minority of government employees who make mistakes while operating in legally-unclear areas.
Operating "clearly and unequivocally within the bounds of law" is not a difficult thing to do. Normal citizens do this all the time, despite being subject to far more unclear laws and ordinances than officers of the actual law. If an action seems brutal, vindictive, or not entirely justified, it's probably a violation of someone's rights. There's plenty of leeway given to officers to engage in their duties. Courts allow cops to lie to suspects during interrogations, take people's property with almost zero justification, draw them into reverse sting operations involving make believe contraband, and make up the law as they go along to engage in pretextual traffic stops.
And the courts have also taken a very expansive view of the term "reasonable," allowing all sorts of unreasonable violations to be waved away by innovations of qualified immunity. This is the only thing being removed by the proposed law. And it only affects cases brought in the city's courts. It's hardly the end of qualified immunity and it isn't the death knell to good policing the SBA pretends it is. If officers start exiting the force -- or refusing to do their jobs -- because QI is no longer available, it will merely indicate these officers are unable (or unwilling) to perform their duties lawfully.