Editorial: Time to end qualified immunity

Posted Monday, May 3, 2021 in Opinion

Editorial: Time to end qualified immunity

by New Maine Times Editorial Board

There is a lot we don't know about how Maine polices its citizens. Too many issues are not made readily available to the public, as we learned last month when the Maine State Police finally made public -- sort of -- a group of 19 disciplinary records, some heavily redacted, over the last five years. Most likely there had been more, but it is possible that no one will ever know, because the records are destroyed after a period of time.

Or the fact that Maine does not keep data on bias in policing. What we do know is that with Black citizens being 1.6 percent of Maine's population, they represent 5 percent of all arrests. All other information is unfortunately anecdotal; Black citizens report being pulled over for reasons that Whites do not, for instance.

These situations are all the more reason to encourage better data keeping and transparency by removing the shield that protects law enforcement officers when citizens believe their civil rights have been violated.

Qualified immunity was a doctrine developed by the Supreme Court 50 years ago. Under its shield, an officer cannot be sued civilly for civil rights violations unless either the Supreme Court or the Appelate Court in which the incident occurred have decisively ruled that a particular action -- one that has to be exact to the one committed by the officer in question -- violates the victim's civil rights. If no such ruling has been made, then the officer is granted the presumption of ignorance -- he or she couldn't be expected to know that such an action was a civil rights violation, and therefore couldn't be responsible.

For instance, Minneapolis is part of the Eighth Circuit Court of Appeals, which covers a number of midwestern states. At the moment that George Floyd died under the knee of Derek Chauvin, neither it nor the U.S. Supreme Court had ruled definitively that killing someone or injuring someone by asphyxiating them by placing a knee on their neck was a civil rights violation. Even though Chauvin was found guilty of murder and manslaughter, he will probably never be sued civilly for violating Floyd's civil rights.

Instead, the City of Minneapolis, with its 420,000 taxpayers, is on the hook for the $27 million settlement the city reached with the Floyd family. And there will probably be more settlements coming, as the city has to pay when protesters, bystanders, and even journalists were injured or abused by police during the ensuing riots.

The Chauvin case was nearly unique in that the defendant actually stood trial and was convicted, thanks in large part to a teenager who calmly filmed the entire ordeal. Chauvin's sentencing date in June will occur two months before four other officers will stand trial as accessories to the same killing. And even so, Chauvin will probably never have to pay a dime for his actions because of qualified immunity.

How many people in Maine might have sued an officer instead of a municipality, county, or state when the officer mistreated them? We don't really know, but not knowing is not a good enough reason not to act. Nor does it mean there isn't a middle ground.

Many people work with the public in situations where there might be incorrect treatment, leading to death or injury or defamation, intentional or not. There are already means  to protect these essential workers -- professional liability insurance or personal umbrella insurance. There is no good reason why police should not be asked to pay for a fraction of what a civil rights claim would be, rather than leaving it to their jurisdiction -- and every taxpayer therein -- to pay for their poor behavior.

We do not accept the specious argument that if the police can be sued for their actions, no one will step forward to work in law enforcement. Doctors, lawyers, and many other professionals can be sued right now, and that is not keeping would-be doctors and lawyers from competing strenuously for seats in law and medical schools. Nor, apparently, is the cost of malpractice insurance. But we must ask ourselves a serious question. If it were true that people considering a position in a police department were deterred by the fear that their behavior would lead to a lawsuit, isn't that a good thing? Do we want police officers who feel they cannot control their behavior to the point where a victim believes it crosses a red line into a civil rights violation? Of course we want our employees -- and police work for us -- to feel they have all the tools necessary to do their jobs in a safe way. To that end, more rigorous training -- perhaps over a two-year degree program at a community college rather than a few weeks at the police academy -- might be a better solution. But every worker needs to be responsible for his or her actions on the job.

We therefore support efforts to end qualified immunity by one of two means: One, L.D. 214, would eliminate qualified immunity entirely for police officers, sheriffs and other law enforcement officers in Maine. The other, L.D. 1416, would deny qualified immunity to officers who have received training and work for departments that have use-of-force policies in place, yet still violate constitutional rights. LD 1416 could be a bridge to LD 214, but the process has to begin now.

We also support efforts to increase transparency in all police agencies with regard to police misconduct. The steps offered by the Maine State Police are simply the first steps necessary to a greater public understanding of what happens when an officer is accused of misconduct. As for profiling, Maine already has a law -- An Act to Eliminate Profiling in Maine. However, because there has been no data collection, it is impossible to say whether it is working or not. Data collection must be dealt with by the officers who make the arrest or traffic stop, and it may not be collected at all, done properly, or done consistently.

Limiting or eliminating qualified immunity, knowing which officers are being disciplined, and knowing who is being pulled over and arrested in Maine is a first step for the policed to have confidence in those who police them.

blog comments powered by Disqus