Abolishing Qualified Immunity Is Only Part of the Solution to Police Misconduct
By: Leigh Ann Webster
Tags: Police, Criminal Justice Reform, Legal, Criminal Law, Criminal Justice

Anyone interested in curbing police misconduct cannot be concerned only with what happens when police kill or injure. Instead, they must also be concerned with police misconduct that jeopardizes the basic right to liberty.

Often, the highest priority of the criminal system is ensuring that individuals are prosecuted and convicted. The insistence on ensuring convictions and sentences frequently overrides other interests — like curbing police misconduct or protecting the constitutional rights of Americans and those that live here. If we are serious about counteracting police misconduct, we must also abolish the legal doctrines that allow that misconduct to go unchecked in criminal cases.

After police officers killed George Floyd, Breonna Taylor, Rayshard Brooks, and so many others, activists have increasingly called to abolish qualified immunity — the doctrine that protects law enforcement officers from civil liability (i.e., being sued for money) except in the narrowest of circumstances. Qualified immunity allows law enforcement officers to escape the civil consequences of their actions, even when they violate the victim’s constitutional rights. Abolishing qualified immunity has become a goal of the recent protests, with Colorado passing a law to limit qualified immunity when victims of police brutality sue in state court. Theoretically, making the police face monetary damages for their actions will make them think twice before they shoot unarmed Black men and women for no reason.

But most interactions with law enforcement don’t end in death or physical injury. A far more common outcome is arrest and prosecution, which often yields a harrowing experience with the U.S.’s problematic criminal system. The United States has less than 5% of the world’s population, but 20% of the world’s incarcerated people. A jaw-dropping 2.3 million people are currently in custody in the United States, and nearly double that number — 4.5 million — are under other forms of supervision: bond, probation, supervised release, and/or parole. For many, this type of supervision just leads to being locked up, as 45% of state prison admissions are due to violations of probation or parole. Black people account for 12% of the United States’ population, but 33% of the country’s prison population. The mass incarceration of Black people is one of the leading civil rights issues currently facing this country.

Every day, police engage in misconduct that results in charges or evidence against a criminal defendant, leaving defendants reliant on the court system to protect their rights. For example, an officer might seize property without permission or cause, violating the owner’s Fourth Amendment right to be free from unreasonable searches and seizures. Once they get to court, defendants routinely challenge evidence that was gathered as a result of police misconduct — and in violation of their constitutional rights. However, the belief that a criminal defendant can vindicate his rights in a court of law is as flawed as the system itself.

Criminal defendants are often stymied by legal doctrines that were created to ensure that the prosecution could have every piece of evidence possible — and to protect police from the consequences of their actions. Specifically, the U.S. Supreme Court has made it nearly impossible to have evidence tossed out before trial. In a series of cases beginning with United States v. Leon, the Supreme Court has held that, even if the officers violate the defendant’s constitutional rights, the evidence should not be thrown out if an objective officer could have committed the same act while acting in good faith — or if any officer could have reasonably believed that his actions were permissible. In the decades since Leon was issued, the good-faith exception has been expanded to other scenarios, and the exclusionary rule, which prevents the prosecution from using illegally gathered evidence, has been narrowed. For example, courts have held that evidence gathered as a result of misconduct can be admitted so long as there is some indication that law enforcement would have discovered it anyway. The result of these decisions is that the illegally gathered evidence is only rarely thrown out.

In justifying these decisions, courts have routinely referenced the importance of ensuring that defendants are convicted of crimes. In Leon, for example, the Supreme Court rejected the idea that suppressing illegally gathered evidence had a deterrent effect on police misconduct and held that it could not “justify the substantial cost of exclusion.” To be clear, the “substantial cost of exclusion” is simply the fact that the government would not have access to the evidence in question and therefore may be less likely or unable to secure a conviction. In essence, the Court was concerned with how much more difficult it would be to prosecute the defendant without the illegally gathered evidence.

In other cases, the Court explained it concisely:

[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.

Courts have therefore consistently refused to put “the government in a worse position than had the police misconduct not occurred.”

The courts have effectively decided that, even if they are faced with negative consequences to their actions, law enforcement officers will not be deterred from committing misconduct. It is a shocking position for the courts to take, but it also flies in the face of how the entire criminal system works.

The concept of deterrence is foundational to the operation of the criminal system. The concept of sending people to prison is premised largely on the idea of deterrence. It is almost universally recognized that deterrence — encouraging people not to commit crimes — requires punishment: being locked in a cage for some period of time. Before imposing sentence, federal judges are required to consider the need for the sentence “to afford adequate deterrence to criminal conduct.” To understand this concept, one need look no further than every court hearing at which the prosecutor asks the judge to “send a message” to the defendant and to the broader community. When a prosecutor makes that “send a message” argument, she is asking for the court to consider the importance of deterrence when fashioning an appropriate sentence for the defendant. Even first-year law students learn that one of the primary purposes behind punishment (or prison) is deterrence.

The courts have effectively developed one type of deterrence for police officers and another for criminal defendants. If anyone understands that, it is criminal defendants and those that advocate for them. While courts may insist that we should not place law enforcement officers in a worse position than they would have been in without the misconduct, this plainly does not apply to criminal defendants. In this system, which results in the lengthiest prison sentences in the world, defendants are not deterred simply by putting them in the same position that they were in before they committed the crime. For example, prosecutors do not generally allow people who stole money to simply repay that money and go about their lives. They do not allow people who committed fraud to divest themselves of any of the benefit from the fraud and to avoid prison. They do not allow people who lied to federal investigators to simply come clean about their lies and then to go free (unless your name is Michael Flynn, but that’s another story). Rather, they insist on prison sentences.

Why, then, are judges who are so well-versed in this concept when it comes time to deter criminal defendants unable to apply this same concept to police officers? It is all too typical of the criminal system for a concept to work one way for criminal defendants, while it means something entirely different for law enforcement officers.

Every day, courts are forced to balance countervailing interests. When police commit misconduct while investigating crimes, courts have to balance the need to protect society with the need to protect the individual rights of the defendant before them. While it is obviously important to protect society from crime, protecting the rights of individuals is also important — so important that the Founding Fathers ensured that the rights were enshrined in the Bill of Rights. The country’s foundational documents do not contain any similar assurance that every crime will be prosecuted to the fullest extent possible. For too long, this country has prioritized putting people in prison over everything else. It is long past time to ensure that individuals’ constitutional rights are truly protected. Courts should send a message to law enforcement officers that they must protect these rights even when they are investigating crimes.

If the courts are so certain that people must be held accountable for their actions no matter what, this principle should apply to all people, including law enforcement officers. This is true in the civil arena, where qualified immunity should be abolished, and in the criminal system, where the good-faith exception and similar doctrines should be soundly rejected. When police officers commit misconduct and violate a person’s constitutional rights, we must be just as invested in correcting that problem as we are in making sure that everyday citizens are prosecuted and sentenced to prison.