Virginia’s new governor. Glenn Youngkin looks set to be a rising star for the Republican Party. His campaign was focused on the most pressing issues at the time: eliminating critical race theory from public schools; lifting restrictions surrounding COVID-19; cutting taxes by significant margins and prohibiting citizens from holding governments accountable for violating your constitutional rights in civil courts.
One of the two is different for the advocate of limited government.
The state and local authorities can infringe upon your rights, without you being sued, if qualified immunity has been established in court. Under all the legalese is a collection of stories that might be funny if they weren’t about real people dealing with their misbehavior. civil servants.
It’s how two police officers in Fresno, California, were able to avoid a lawsuit after allegedly pocketing $225,000 from two suspects—who, it bears mentioning, were never charged with a crime—during the execution of a search warrant. It’s how a cop in Coffee County, Georgia, was able to skirt civil court after shooting a 10-year-old boy who was lying on the ground, leaving his family with the bill after he needed extensive care from an orthopedic surgeon. This is how cops can assault people and file false charges, damage their property and violate First Amendment rights, while the victims don’t have the right to ask for damages.
After George Floyd’s death in May 2020, the legal doctrine was a target of bipartisan reform. Discussions around qualified immunity used to be dominated by outlets and think tanks. Reason. A small number of Republicans are willing to discuss the matter, but a portion of the back-the blue right offers some reflexive defense. This is how it looks:
Consider how you would feel if you saw the extraordinary rise in violent crime, and thought: “You know what we have right now?” Officer protections are less robust! https://t.co/RHvPY8Sek8
— Nate Hochman (@njhochman) January 20, 2022
This is a valid response that should be addressed in good faith, considering the fact it probably undergirds much of the support for qualified immunity by conservatives such as Youngkin. They would in nearly every instance claim their ideology stands to keep government accountable and honest for those it serves.
Hochman is a fellow of the Intercollegiate Studies Institute. National Review True, there has been an increase in violent crime. This is something many criminal justice reform advocates would rather ignore. This is the problem. It has nothing to do qualified immunity.
The response means that, because of an increase in violent crime, officers should be able steal, kill children, attack surrendered suspects, destroy property, and shoot them. I prefer to believe that good cops—of which there are many—can do their jobs without relying on illegal tactics.
Law enforcement is greatly disserviced by conservatives who accept qualified immunity. Clark Neily is senior vice president of legal studies at Cato Institute. “I believe there’s nothing more demoralizing for good police officers than being trapped within the profession with poor police officers,” Clark Neily says. “If you’re going to be thoughtful about it, police do not have the ability to just unilaterally prevent or solve violent crime….As long as police officers are perceived as being institutionally unaccountable, [they]They will not receive the support from the community. Confidence in police hovers just over 50 percent, according to a 2021 Gallup poll, up 3 points from a record low in 2020—the first time it ever fell below a majority.
Importantly, the response—that victims of police misconduct should have no recourse during times of higher crime rates—fails to account for how qualified immunity actually works in practice. According to Joanna Schwartz (a UCLA law professor), more than 99% of the judgments against police officers are paid by taxpayers. That’s because municipalities indemnify their employees from having to pay full judgments—or from having to pay anything at all. The actual government agents accounted for 0.02 percent. They were not financially bankrupt for their bad behaviour.
Can victims not sue the municipality? It’s possible, however it’s unlikely they’ll succeed there. They are protected by The Monell The doctrine protects cities against lawsuits, unless there was a policy or rule that allowed the particular behavior. This standard is more complex than qualified immunity.
What about frivolous lawsuits that could be brought against police officers? This is also a mistake, especially when you consider that you cannot simply go to a federal courthouse and sue because of your anger at the police. Two conditions must be met before a plaintiff can sue government actors: the defendant must have affirmatively violated constitutional rights of another person and the case law must clearly establish the violation. An applicant would need to show to a federal court that his constitutional rights were violated even though he has qualified immunity. Qualified immunity is only the second part—the part that sends a victim searching for a perfect court precedent where another victim experienced a near-identical sort of misconduct.
It’s for that reason that the doctrine gives license to some disturbing behavior—the sort that should concern anyone who positions himself as a defender of responsible governance. Example: While the City Officers would have acknowledged that the alleged theft is morally unacceptable, the police failed to notice it was in violation of the Fourth Amendment. This is a real quote from a real decision from a real federal court—the U.S. Court of Appeals for the 9th Circuit—awarding qualified immunity to two government actors who we apparently cannot trust to know that stealing during a search warrant is unconstitutional unless there is some obscure court precedent saying so. The majority of people have more trust in the police being honest and doing their job. Yes, I do.
Qualified immunity reform seems to be dead in legislative land, but the Supreme Court is willing to speak more about the subject. Two of its most vocal opponents are Associate Justice Sonia Sotomayor, and Associate Judge Clarence Thomas. The former is one the most liberal jurists, while the latter may be the most conservative. Thomas wrote in 2020, a lone dissident after all other justices declined to consider a case that involved two police officers who were granted qualified immunity for allegedly having released a dog to search for a suspect who surrendered. This is because the high court legislated qualified immunity a few decades back in direct conflict with civil rights law. This type of opposition is often a mark of conservatism. However, it’s more politically convenient in this case.
But perhaps most insidious in this case is the idea that principles around limited and accountable government should be subject to change based on the year—a strange argument for any conservative.