The relationships between police officers and citizens has come into sharp focus for many Americans. The extrajudicial killing of George Floyd highlighted again that police officers are subject to criminal penalties but not civil penalties when they break the law.
Traditionally, State actors are immune from being sued by the citizens of the State. Wikipedia accurately states, “Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune to civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger rule as regards foreign courts is named state immunity.” The Federal and State Governments of the United States have made exceptions to this Sovereign Immunity tradition.
Police officers (both State and Federal) are subject to criminal laws in the line of duty, but not in the exact same way as citizens. Monu Bedi, Law Professor as DePaul University School of Law, explains that:
If a police officer unlawfully harms a citizen, the officer is subject to assault or homicide charges — no different than if the officer committed these crimes off duty.  However, if a citizen unlawfully harms a police officer, the citizen is automatically subject to aggravated assault or aggravated homicide charges, which carry more severe punishment.  In fact, some states make the intentional killing of an on-duty officer a capital offense.  Enhanced charges in police encounters are thus asymmetrical. They only apply if a citizen harms an officer but not if an officer harms a citizen.
States have similar one-sided aggravated charges when it comes to crimes against other employees performing public services such as paramedics, public-school teachers, and firefighters.  The key in all these situations is that the victim was acting in her official capacity at the time of the crime.  The rationale for these statutes is straightforward. It is imperative for states to deter individuals sufficiently from interfering with their ability to carry out state-authorized functions. The Federal Government of the United States of America, as well as the individual States, have created exceptions
Monu Bedi, The Asymmetry of Crimes by and Against Police Officers, 66 Duke L. Jo. Online May 2017.
Although law enforcement officers are subject to criminal laws, they have special defenses that are not available to ordinary citizens. For example, in the State of Nebraska, the Self Defense statute gives extra protection to police officers.
Neb. Rev. Stat. 28–1409.
Use of force in self-protection.
(1) Subject to the provisions of this section and of section 28–1414, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(2) The use of such force is not justifiable under this section to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.
(3) The use of such force is not justifiable under this section to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
(a) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;
(4) The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat, nor is it justifiable if:
(ii) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape shall not be obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.
Every State has criminal carve-outs regarding murder in the line of duty. Not surprisingly, police officers are rarely found guilty in police involved shootings.
The Sovereign Immunity doctrine stops most citizens from suing the government or its agents. In 1871, the Federal US Congress created a carve out for Civil Rights violations under its power granted by Section 5 of the 14th Amendment to the Constitution. The carve out was part of the “Third Force Act” or Ku Klux Act which allowed President Grant to impose martial law to fight the KKK. Included in that legislation was the first version of 42 USC 1983. The basic thrust is, if a person acting under the authority of any government deprives a citizen of their rights the bad actor is liable to the citizen. The law made the Federal Government the guarantor basic Civil Rights against the States. (For further reading, consider Brad Reid’s piece in the Huff Post).
The statute that allows State Actors to be sued in Civil Court does not contain a police officer exception. The Supreme Court of the United States created Qualified Immunity which protects law enforcement from being sued civilly. The Case that launched Qualified Immunity was Pierson v. Ray, 386 U.S. 547 (1967)
In Pierson, 28 Episcopal Priests from the Episcopal Society for Cultural and Racial Unity, both black and white priests, planned to participate in the Freedom Rides of 1961. While on their journey, 15 Priests were arrested in Tougaloo Mississippi by Officers David Nichols and Joseph Griffith under a breach of the peace statute. By 1967, the statute in question had been deemed unconstitutional by the Supreme Court of the United States and the Priests had sued the officers under 42 USC 1983.
The Supreme Court sided with the officers. The Chief Justice stated:
A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid, but that was later held unconstitutional, on its face or as applied.
In a flash, Qualified Immunity was born. An officer of the law cannot be sued under section 1983 as long as he or she was acting under “good faith” or had “probable cause” to act as he or she did. Qualified Immunity would not protect and officer completely. If an officer was found to have acted outside the “color of law” that officer could be found civilly liable, but not under section 1983 but simply as a citizen who does not enjoy the protection of the State. Its important to note here that the Supreme Court in Pierson relied on common law in 1871 which still imagined Sovereign Immunity (or crown immunity) for the agents of the government (crown). The Immunity doctrine has grown and been better defined since then. Law Professor Diana Hassel succinctly stated what happened after Pierson this way:
In the years that followed Pierson, the Court sorted through which government officials were entitled to absolute immunity and which were protected by good faith, or qualified immunity. Prosecutors, judges, members of Congress, and the President were entitled to absolute immunity from liability for the violation of constitutional rights. Absolute immunity for these officials was necessary to protect the functioning of central governmental systems. Judges and prosecutors must not be subject to the burden of civil rights actions to protect the trial process.
Having carved out absolute immunity for some categories of government officials, the Court also refined the good faith defense first articulated in Pierson. The standard for qualified immunity as it began in Pierson was described as the “defense of good faith and probable cause” that protected police officers who took actions which, in good faith, they believed to be constitutional.
For the legal nerds out there, Qualified Immunity is an affirmative defense, but one that can be raised and won BEFORE trial. Its a pre-trial matter. The need for a trial at all is muted.
What can we do moving forward?
- Amend the text of 42 USC 1983. Include specific language the includes police officers making the judicial creation of qualified immunity obsolete. This would remove the protection entirely.
- Amend the text of 42 USC 1983 to not eradicate but limit Qualified Immunity. Instead of allowing Courts the option of ruling on the defense before a Jury has a chance to see the case, make it a Jury issue only. Take the question out of the hands of pretrial Judges and place the Defense at trial.
- Advance more cases. Even though many will lose, every person or family member standing in for the dead, should sue the cops. Stay persistent. Ask your local Judges to make the Defense a Jury issue and not a pretrial issue.
- Leave the doctrine as is. Some might think that a reasonable police officer shouldn’t have to worry about a lawsuit 2 years from now while trying to do his job.
Society needs to reexamine the undemocratic defense of Qualified Immunity. In determining where you personally stand on the issue, please consider the history and policy ideas that created the doctrine in the first place.