Police-reform advocates hope state lawmakers can push through another major change – repealing the “qualified immunity” doctrine that has long frustrated attempts to sue police officers for civil rights violations.
With less than a month left in this year’s legislative session, advocates are talking up a bill that would both end qualified immunity and amend the state’s civil rights law. With the change, victims’ lawyers can keep their cases in state courts rather than the federal courts, which continue to recognize the doctrine shielding individual officers from liability unless they violated a clearly established law.
“There are hundreds of families across New York who have been seeking justice urgently through civil action for the deprivation of the rights of their loved ones in our state,” State Sen. Robert Jackson, D-Manhattan, the main sponsor of the Senate bill, told The Buffalo News in a statement.
“A year after the George Floyd murder, we continue to see these families denied that justice because of qualified immunity, and this must stop. We will continue pushing to make sure this bill passes,” he said.
With Democrats firmly in control of both chambers in Albany, they have made police disciplinary records public, rewritten the bail process and legalized recreational marijuana.
Mayor Byron Brown has said he does not support defunding the police department but remains in “strong favor” favor of reforming it.
Right now, Jackson’s bill has drawn mostly downstate support, as has its counterpart in the State Assembly. Neither would end the indemnification of officers by their employers. So governments – which often means taxpayers – would continue to pay court awards or out-of-court settlements in lawsuits against police.
Still, police unions hardly welcome the potential change.
The police response
"Legislators don't want to be on the side of law enforcement these days," said John Evans, president of the Buffalo Police Benevolent Association, Erie County's largest police union, which is lobbying against the bill through the Police Conference of New York.
But Evans said neither he or his members are likely to lose sleep over the legislation, should it pass, because indemnification for officers would continue.
"If they do take away indemnification, we have a real problem in the profession," he said.
Buffalo itself has been talking about civilian review since at least the 1990s, but there have never been enough city officials willing to step up, Watson says.
When the New York City Council repealed qualified immunity for NYPD officers, the head of the police union there, Patrick Lynch, complained that the council has “ratcheted up our exposure to lawsuits.”
“Police officers need protections in order to perform discretionary functions important to law enforcement,” the national president of the Fraternal Order of Police, Patrick Yoes, told a U.S. Senate committee as he opposed any move to repeal qualified immunity. “It is extremely difficult for an officer to determine how a legal doctrine will apply to a split-second factual scenario that the officer confronts.”
But the Law Enforcement Action Partnership, an association of police and other criminal justice professionals, has come out in favor of the state bill: “One major reason that people do not trust law enforcement is that they believe police are not held accountable to the law,” LEAP said in a statement to the State Senate. “A key reason for this belief is qualified immunity.”
While the partnership favors the bill, it said qualified immunity is not as big a threat to civil rights as some people think, and ending it would not be as huge a loss as some officers might think. Judges dismissed civil rights lawsuits on qualified immunity grounds in only 4% of the cases involving law enforcement officers, the partnership said, adding that judges have other ways to dismiss cases that truly lack merit.
"No-knock search warrants are a tool that is best used infrequently, selectively, and only when there is a legitimate concern for community or officer safety," Mayor Brown said.
Though most of the discussion on qualified immunity focuses on police officers, it protects all government officials, and Jackson’s bill would repeal the protection for all government officials.
The U.S. Supreme Court established and then expanded the qualified immunity doctrine in two decisions 15 years apart. In 1967, the court ruled government officials could not be sued if they were acting in good faith and didn’t know what they were doing was illegal. In 1982, the court ruled government officials could not be held personally liable for acts within their official capacity if they did not violate a “clearly established” law. In practice, police officers can’t be sued for simply acting as a police officer, even if they were reckless or dangerous, unless a previous case found similar conduct illegal.
Critics of qualified immunity cite some of the decisions it has brought. In California, some Fresno police officers stole money from a person whose house was being searched and the victim sued. The Ninth Circuit Court of Appeals dismissed the lawsuit on qualified immunity grounds because no previous Ninth Circuit case specifically said that police stealing from a plaintiff violates the Fourth Amendment, which protects against unreasonable search and seizure. Similarly, a federal appeals court said that a Georgia sheriff’s deputy did not clearly violate a 10-year-old boy’s rights when he accidentally shot him in the knee when he meant to shoot the family’s dog.
In use locally
Local governments almost always raise the qualified immunity defense, forcing plaintiffs’ attorneys to find a past case in which similar or nearly identical police actions were found to have violated someone’s civil rights, said Nan L. Haynes, a retired University at Buffalo Law School professor who has sued governments and their employees.
When she sued Erie County on behalf of a Holding Center inmate who almost died because he had been denied his insulin, a lawyer for one of the nurses involved asserted qualified immunity. Haynes said she found a court decision in which a medical professional in a jail who had failed to prescribe orthopedic shoes to an inmate was denied qualified immunity. The circumstance was close enough to the situation involving the diabetic inmate, and the nurse remained a defendant.
The changes to police policy follow days of protests sparked by the death of George Floyd in
Excessive force cases, she said, usually require a closer set of circumstances to avoid the qualified immunity defense.
"Thus, officers often get away with excessive force because of the defense," she said.
The City of Buffalo asserted a qualified immunity defense in its initial response to a lawsuit filed by protester Martin Gugino, who police pushed to the ground, causing him to strike his head, outside City Hall last summer. The state has used a qualified immunity defense in a lawsuit brought by a woman whose son was beaten by corrections officers at the Wende Correctional Facility. The son, a man named Dante Taylor, committed suicide soon after. In the mid-1990s, a federal judge in Buffalo dismissed part of the case against the Cheektowaga police officers sued by a woman who was forcefully arrested after moving the unmarked car blocking her driveway, thinking it was the vehicle of a family friend.
Qualified immunity protects individuals, not the government itself, so an individual being granted protection does not always end lawsuits that also allege the government maintained a pattern or a practice that violated civil rights. In Erie County, lawsuits alleging police misconduct or brutality rarely go to trial and are usually settled with sums negotiated out of court.
Unites right and left
Both liberals and libertarians have rallied around the repeal of qualified immunity. A repeal movement has drawn out such sports stars and entertainers as Tom Brady, Drew Brees and Rosanne Cash. Two U.S. Supreme Court justices who are polar opposites ideologically, Clarence Thomas and Sonia Sotomayor, are in agreement on the issue, with Sotomayor once writing that qualified immunity gives police license to shoot first and think later. But the high court in recent years has not taken up a new case that could undo the precedent from 39 years ago.
While the House of Representatives voted this year to eliminate qualified immunity for law enforcement officers as part of the George Floyd Justice in Policing Act, the act has stalled in the Senate, largely over concerns about qualified immunity.
The bill in Albany strips away the defense that a government official is immune because they acted in good faith or did not know their conduct was unlawful. In one of its boldest changes, the bill would amend the state’s civil rights law by adding key sentences from the federal civil rights law, Section 1983, which makes government officials liable for their civil rights violations.
That would allow lawyers in New York to cite the state law, and not the federal law, in their lawsuits, explains retired law professor Haynes. By doing so, she said, government defendants would lose the ability to move those cases to federal court and cite qualified immunity.
In April, the bill's advocates saw a sign that, if the bill passes, the police will react in exactly the manner the bill’s advocates are hoping for.
When the New York City Council stripped the quality immunity defense from lawsuits involving the city’s police, three lawyers who represent the officers in civil suits issued guidance for the ranks: “We advise that you proceed with caution when taking any police action which could lead to physical engagement with any person,” the lawyers said in a memorandum. They went on to advise against stop and frisk searches and any search of a person or a residence “unless you are clearly and unequivocally within the bounds of the law.”
“That’s what we want,” said Katerina Siira, an organizer of a group urging the bill’s adoption, the End Qualified Immunity N.Y. Campaign. “We are not looking to punish people. We want to prevent the violence to begin with so people don’t have to demand accountability and justice.”