One policing reform being discussed in some states is modifying or rescinding officers’ qualified immunity to legal liability for violating persons’ Constitutional rights. To find out what police executives should know about potential changes to qualified immunity, PERF Executive Director Chuck Wexler spoke with New York State Assistant Attorney General Jennifer Sommers; Major John Prieschl from the Palm Beach County, Florida Sheriff’s Office; and Denver Assistant City Attorney Wendy Shea.

New York State Assistant Attorney General Jennifer Sommers:

Chuck Wexler: What is qualified immunity?

Jennifer Sommers: Very broadly, qualified immunity is a doctrine that applies to all government officials that prevents them from being held liable for violating individuals’ Constitutional rights if the right at issue is not clearly established. As a practical matter, we all know that certain acts, such as excessive force, false arrest, and false imprisonment, violate Constitutional rights. But it’s not enough to show that a public official violated a person’s rights. They often need to show that it was done in a way that was factually similar to another case or cases in the federal circuit court jurisdiction where courts have found that similar conduct violated the Constitution.

For example, if a police officer gets sued for excessive force and the officer raises the defense of qualified immunity, the plaintiff will need to find a case in the same federal circuit court jurisdiction with significantly similar facts. In my opinion, that’s often difficult. It also lays bare that whether or not your Constitutional rights have been violated somewhat depends on where in the United States you happen to be standing when that happened.

In my opinion, it also has a freezing effect. The law can’t move forward when everything is dismissed unless there’s already something factually similar in the jurisdiction.

Wexler: What are the arguments for and against qualified immunity?

Ms. Sommers: The people arguing against qualified immunity argue that it shields officers from lawsuits brought by people whose Constitutional rights have been violated. That doesn’t promote accountability. It’s unfair to people whose rights have been violated. And if cases are being rejected and officers are immune, there’s no motivation to modify police conduct.

On the other side are the people who argue that it would be wrong to get rid of or meaningfully change qualified immunity. They argue that removing qualified immunity would make officers hesitant when making split-second decisions. The other primary argument is that fewer and fewer people will want to become law enforcement officers at a time when we’re really trying to build diverse police forces and bring in new people.

Major John Prieschl, J.D., Palm Beach County Sheriff’s Office:

Wexler:  How do discussions about changes to qualified immunity impact the Palm Beach County Sheriff’s Office?

Major John Prieschl: There is a lot of discussion of qualified immunity. We’re also paying attention to reforms going on at the state level regarding governmental immunity for state-level claims. We see that as a potential pathway for states that are looking to reform the law on immunity at the state level. There has been some talk of reforms in Florida, but there doesn’t appear to be a lot of traction. That could change, though.

We’ve been paying attention to the language in the bill that passed in Colorado in June and bills that have been proposed in other states.

Wexler: What does qualified immunity mean to you?

Major Prieschl: To me, qualified immunity is some protection of law enforcement officers who act in good faith and make a mistake. We’re asking our law enforcement officers to make split-second decisions under pressure. If qualified immunity were completely lifted, they’d lose that protection. Then we’d be saying that not only do we expect you to make split-second decisions, but we also expect you to be right each and every time.

There’s a balance between accountability and immunity, and accountability can happen at a lot of different levels. I think it’s extremely important that agencies take a look at their culture and accountability systems.

Wexler:  If qualified immunity were removed, what would be the practical implications for your department?

Major Prieschl:  I think we would have problems with recruitment and retention. I’m not talking about problems with problem officers. I’m talking about problems with officers who don’t want to work with that level of potential exposure.

Wexler:   What about the argument that removing qualified immunity will make officers think twice about some of their actions?

Major Prieschl:  I think there’s a good possibility that it would create a chilling effect. I think you’d see hesitation and officers thinking twice. Granted, most police officers don’t have to make split-second, life-or-death decisions all the time. It’s a very, very small portion of the time. But that small portion of time is when you don’t want them to second guess or think too long when they don’t have time on their hands. The vast majority of time they do have time on their hands and can slow down, make better decisions, and we can get to better outcomes.

Assistant City Attorney Wendy Shea, City and County of Denver:

Wexler:  What changes did your state legislature make?

Wendy Shea: We have some sweeping changes in Colorado. The legislature has said that qualified immunity is not a defense to liability. Whether qualified immunity has been entirely eliminated is in question, because it’s both a defense to liability and a defense to going to trial completely. But I’m pretty confident that their intent was to wipe out qualified immunity entirely.

They have also taken away any statutory limits on damages. They also made it so that our officers can be held personally liable for 5% or $25,000, whichever is less, if the cases settles or it goes to trial and there’s a judgment. And if we go to trial and lose that civil case, the officer loses his or her POST certification if it’s related to the use of force. So essentially they lose their job if we take it to trial and lose. And there’s no appeal unless the entire verdict is reversed. We’re in an interesting situation, to say the least, because how could we ever take a use-of-force case to trial knowing that our officer could lose his or her career if we lose?

Wexler: How has this impacted the Denver Police Department?

Ms. Shea: We have a morale issue that’s been very difficult. We’ve had some phenomenal officers go into early retirement, and they cited the passage of this bill as the reason. We’ve also seen a recruitment issue, with recruits dropping out of the academy after this bill passed.

And we get a lot of questions and concerns during training. They’ve changed the language about when and how officers can use force, and it’s difficult for them to comply with.

Wexler:  Has the Denver Police Department changed policies or training to be in compliance with this law?

Ms. Shea:  We have. Parts of the law went into effect June 19, and more went into effect September 1. What it impacts the most is use of force. The law requires that officers can only use force if there are no other alternatives available. We have to train officers on what that means and make sure they’re writing their reports to show that there are no other reasonable alternatives available at the time.

They also have a very broad definition of what physical force means, so we’re trying to explain that to officers. It’s so broadly worded that it could mean anything down to handcuffing.

We know officers are often in split-second, stressful situations, and we don’t want them to hesitate because they could be severely injured or killed. That’s not what anyone wants or intends here.

It’s been difficult to maneuver around some of this, since I think we were the first state to pass a law like this. We’ve seen one case filed under this law, and we’ll see what happens as we challenge parts of it.

The PERF Critical Issues Report is part of the Critical Issues in Policing project, supported by the Motorola Solutions Foundation.

PERF also is grateful to the Howard G. Buffett Foundation for supporting this work.