New York Post Op-Ed: Sorry: This criminal-justice ‘reform’ would be disaster for policing

 September 24, 2020

Courtesy of Deputy Attorney General Jeffrey A. Rosen

This op-ed originally appeared in New York Post on September 24, 2020.

George Floyd’s death prompted lawmakers on both sides of the aisle to consider ways to reform policing. Some of their suggestions hold promise. But other radical ideas are wide of the mark and, if enacted, would pose a serious threat to public safety. Eliminating qualified immunity falls squarely in that category.

Qualified immunity is a legal doctrine that prevents law-enforcement officers and other officials from being personally subjected to civil lawsuits when they have acted lawfully and haven’t violated clearly established rights. The US Supreme Court has repeatedly observed that qualified immunity from civil suits is critical to preserving safety and ensuring a robust police force.

Qualified immunity is not a get-out-of-jail-free card for abusive policing. Criminal charges already can be — and are — brought against cops who break the law. The Department of Justice vigorously investigates and prosecutes allegations against officers, including excessive-force cases.

Since 2009, the DOJ has charged more than 700 law-enforcement officials for willfully violating civil rights or for breaking related laws. Officers know that, with or without qualified immunity in civil cases, they can be criminally charged, lose their jobs and go to prison if they break the law.

With all this in place, it’s hard to see what good would come from ending qualified immunity in civil lawsuits.

The more likely result will be less safe communities. Officers are constantly put in dangerous situations, where they must make split-second decisions to protect innocent lives. The International Association of Chiefs of Police has warned that ending qualified immunity “would have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.”

The growing risk to officers’ own lives heightens the risk. Assaults against police jumped 20 per­cent from 2014 to 2017, to about 60,000 a year.

Police officers must be able to respond decisively and responsibly. When a bad guy is threatening to slash innocents on a sidewalk with a knife, officers don’t have time to analyze legal memos.

Ending qualified immunity would also impose heavy financial burdens on courts and taxpayers, as lawsuits against police, prosecutors, judges, guards and wardens are already common.

Prison inmates account for nearly 20 percent of all civil cases launched in federal courts, according to government stats, totaling more than 50,000 a year. About 45,000 cases a year raise claims seeking monetary damages against law enforcers. That number would spike without qualified immunity. State and local governments would bear much of the financial burden of these new cases. Trial lawyers would rub their hands; the public wouldn’t benefit.

About 85 percent of law enforcers are state and local. A recent study of 44 of the largest US law-enforcement agencies found that even with qualified immunity, state and local governments pay 99.98 percent of the settlements and judgments that plaintiffs recover in lawsuits where qualified immunity potentially might apply.

In 2018 alone, the four largest city police departments in the United States — those in New York, LA, Chicago and Philadelphia — paid $397.7 million in settlements and judgments, despite the benefit of qualified immunity. If they have their way, anti-qualified-immunity activists would have those already-huge costs skyrocket.

Unscrupulous lawyers would file still more lawsuits, even if their claims are frivolous. Although each party generally pays its own attorneys’ fees, one of the limited exceptions applies to certain lawsuits against state and local law enforcement. The potential to receive attorneys’ fees would provide an added incentive for opportunistic or media-savvy lawyers and plaintiffs to bring actions against cops, seeking settlements even where no misconduct had occurred.

Eliminating qualified immunity is plainly the wrong way to implement police reform. Every day, we ask our law-enforcement officers to put themselves in harm’s way to protect our streets.

Officers should be — and are — held accountable when they violate the law. They shouldn’t also have to worry about being personally sued for doing their jobs, when they follow the law. Congress, the states and our courts need to preserve qualified immunity: to protect public safety and to save money for real and urgent needs.