Sensible police reform includes changing ‘qualified immunity’ laws

Share on Facebook
Share on Twitter
Share on
LinkedIn
+

This op-ed originally appeared in WGBH News, The Lowell Sun, The Fitchburg Sentinel & Gazette, Salem News, and the Gloucester Daily Times.

By Jim Stergios and Charlie Chieppo

Even in a time of painful divisions in our country, there is little doubt among people of good faith that what Derek Chauvin and three other former Minneapolis police officers did to George Floyd was criminal. If they are indeed convicted of a felony, how is it that the former officers could very well be immune from civil liability?

The answer lies in Harlow vs. Fitzgerald, a 1982 U.S. Supreme Court case. There, the justices ruled that public officials should have “qualified immunity.” In practice, qualified immunity nearly exempts public officials from civil liability for their actions, no matter how egregious. The Court found that officials can only be found liable if they violate “clearly established law.” As applied to the Floyd case, it means that unless there is a federal case finding that kneeling on a person’s neck until the person dies is illegal, Chauvin wouldn’t incur civil liability.

If you think that couldn’t possibly be true, consider the Sixth Circuit Court of Appeals’ 2019 decision in Baxter vs. Bracey. A panel of judges found that two police officers who unleashed a dog on a suspect who was sitting down with his hands up were entitled to qualified immunity because, even though an earlier ruling found that officers were not allowed to sic a dog on someone who was lying down, no case ever addressed whether the same was true for a suspect who was sitting with his hands up.

For Americans to have faith in our legal system, the system must be rational, and providing felons with immunity from civil liability doesn’t pass the smell test. Nor does the idea that public officials can violate our rights with impunity as long as they come up with a way to do it that no federal court has yet addressed.

In the wake of Floyd being killed, a bill introduced by Rep. Justin Amash of Michigan would bring us closer to the ideals outlined in the Constitution. Massachusetts Rep. Ayanna Pressley is among more than 50 co-sponsors of the “Ending Qualified Immunity Act.”

The need for such legislation was highlighted just this month, when the Supreme Court refused to hear several cases that challenge qualified immunity, including Baxter vs. Bracey.

Freedom from bad faith violations of our constitutional rights by those sworn to uphold them is among the most basic things we expect from government. We cannot have a healthy republic if public officials don’t respect our rights, and subjecting public officials who trample individual liberties to civil liability is the surest way to protect those rights.

Ending qualified immunity from civil liability would help restore faith in our system, ensure respect for constitutional rights and provide a fair remedy to George Floyd, his family and other victims of bad faith violations. Let’s use this moment of near unanimity about the horror of what was done to Floyd to prevent others from having their rights trampled by the very people we rely on to protect them.

Get Our COVID-19 News, Tips & Resources!

Browse our recent commentary:

Taxachusetts Must Be Stopped

Going back to the bad old days of Taxachusetts would be an almost unfathomable mistake. Between the $3 billion bombshell that upended the recent legislative session, the ambiguity about how the tax revenue will actually be spent, and the contrasting examples of neighboring New Hampshire and Connecticut, Bay State voters have plenty of reasons to come back to reality and reject the ill-conceived proposal to amend the Massachusetts constitution this November.

Harvard research points to ending drug cost help

A common grievance about Harvard is that the university is out of touch with the concerns of everyday Americans. This perception is confirmed by recent research from Harvard Business School that contends patients should be denied assistance that helps them afford their prescription drugs. The Harvard study argues that in order to control drug prices, the government should deny patients’ access to copay assistance programs offered by drug manufacturers. It flies in the face of federal and state efforts to protect the value of such assistance programs for patients and ignores basic facts about how and when patients use copay assistance to access their medications.

WSJ op-ed: Don’t Make Massachusetts ‘Taxachusetts’ Again

Unlike many blue states, Massachusetts has resisted the temptation to raise taxes on high earners. That antitax fortitude is about to be tested. In November, state legislators will ask voters to approve an amendment to the Massachusetts constitution adding a 4% surcharge to annual income over $1 million.

Time for Receivership in Boston

The Massachusetts Department of Elementary and Secondary Education (DESE) recently launched its second review of the Boston Public Schools (BPS) in three years. The move has some up in arms because state law requires that officials conduct a review no more than a year before approving state receivership. For BPS, receivership is long overdue. After more than 15 years of consistent and rapid decline, the district has shown no ability—and limited will—to stem the tide

Civics Education is More Important than Ever

Rather than seeking to raise a generation of political activists and community organizers, civics programs should instill an informed love of our country based on the nation’s founding, how our system of government works, and what Americans have achieved – together with our many failings – since the nation was created.

Removal of Mass. and Cass encampment long overdue

Michelle Wu’s plan to clear tents from the Mass. and Cass homeless camping site by January 12 is long overdue. If only it had been done earlier, the move could have averted a humanitarian crisis.

Maine Tries to Ignore a Clear Supreme Court Ruling on Education

As the U.S. Supreme Court takes up Carson v. Makin, the facts are clear. Maine has chosen to subsidize private education. As such, it cannot disqualify all religious schools from receiving public dollars under its school choice program.

Time for State Action on Troubled Boston Schools

Given the failures of both appointed and elected school boards, perhaps the time has come to have the state Department of Elementary and Secondary Education appoint the members of the Boston School Committee. Patience might be warranted if the Boston Public Schools were improving. But we have waited for decades, and they are only getting worse. Holding adults in the system accountable was a cornerstone of the Education Reform Act. If not now, when?