CRIME, LAWLESSNESS, AND VIOLENCE
Throughout 2020 and into 2021, there has been a wave of increased crime, lawlessness, and violence. Issues of law enforcement policy, crime prevention, and public safety have become prominent. Unfortunately, it is within this context that political extremists have promoted a movement to reduce or eliminate police funding (“Defund the Police!”), and to place undue restrictions on the ability of police to combat and prevent crime.
Many politicians, either out of opportunism or timidity, have sought to benefit from lending support to this anti-police movement. One issue that is being promoted as a supposed “policing reform” solution is to eliminate qualified immunity.
In ordinary times, most of us don’t give much thought to legal terminology such as “qualified immunity.” But under the current circumstances – and given the serious dangers posed by the anti-police movement – it’s necessary to step back and take a look at what qualified immunity is, and why it is so important.
Okay – so what is qualified immunity?
In the United States, qualified immunity is a legal principle that grants government officials performing discretionary functions immunity from civil suits unless the plaintiff shows that the official violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” It is a form of “sovereign immunity” (less strict than “absolute immunity”) that is intended to protect officials who “make reasonable but mistaken judgments about open legal questions,” extending to “all [officials] but the plainly incompetent or those who knowingly violate the law.” Qualified immunity applies only to government officials in civil litigation, and does not protect the government itself from suits arising from officials’ actions.
In other words, if as a citizen you run into a problem with a government action – whether at the Social Security office, motor vehicle registration, police, IRS, etc. – you have the option to file a civil lawsuit against the appropriate government department. But (except in the most egregious cases, such as deliberate violation of law) you can’t file a civil lawsuit against the individual government employee.
MALPRACTICE INSURANCE OR CRIME PREVENTION?
Qualified immunity is an essential part of policing in America. Without it, it would be impossible to have effective law enforcement and crime prevention. Without qualified immunity, every police officer would have to constantly second guess themselves. They would have to constantly worry about whether they might be sued over the next action they take. Each police officer would have to purchase an individual insurance policy similar to a physician’s malpractice insurance.
This would be a new product for the insurance industry – and it would be a new (and likely prohibitive) expense for individual police officers. It would be a strong negative factor discouraging people from pursuing a career in law enforcement.
Unlike physicians, law enforcement employees do not have the income to purchase expensive malpractice insurance. Physicians can join together in a clinic, group practice, or hospital, to garner the benefits of a large pool of people and decrease the cost of insurance. We are all familiar with how medical malpractice insurance leads to extreme bureaucracy, complexity, and financial cost in the medical field. Do we really want those pursuing a career in law enforcement or criminal justice have to deal with the same expense and bureaucracy? Do we want our police officers to concentrate on figuring out how to pay for their malpractice insurance, or do we want our police officers to concentrate on crime prevention?
Police recruitment is already down in the United States for a number of reasons. The elimination of qualified immunity would have a drastic effect on police recruitment and retention. In New York City, with its very high cost of living, a police officer’s starting pay is just $42,500 ($20.43 an hour). Just imagine the bravery, commitment, and courage it takes to risk one’s life every day for just $42,500 a year. They are certainly not in it for the money!
Truly, our police reflect the highest values of commitment to protecting the lives and property of others. Our police are certainly our nation’s finest, and they deserve our support. Do we want to burden police officers with insurance costs of $3,000 or $5,000 or more per year? Isn’t it enough that our law enforcement officers constantly face danger and constantly deal with questions of life and death? On top of that, do we want each individual police officer to worry about the bureaucracy of malpractice insurance, and to worry about being sued for any action they might take to protect the public?
AN IDEA THAT SHOULD BE SCRAPPED
Like “Defund the Police,” the idea of eliminating qualified immunity is a recipe for increased crime, violence, and lawlessness. It would be a boon to criminals, and it would put our communities, neighborhoods, and families in danger.
Eliminating qualified immunity is a dangerous idea. In the interest of public safety, crime prevention, and the rule of law, it is an idea that (along with “Defund the Police”) should be scrapped.