Colorado Government Dumps Qualified Immunity For Cops
from the still-leaning-on-the-taxpayers-though dept
Since qualified immunity isn’t actually a law — but rather a Supreme Court construct — states are under no obligation to adopt this doctrine and apply it to lawsuits against law enforcement officers. But most states have, with Iowa’s top court being the latest to inflict this atrocity on the populace.
The Supreme Court has fine tuned qualified immunity over the years, turning it into a speedy way to dispense with lawsuits brought by people whose rights have been violated. As long as the rights violation was committed in a novel way, cops are free to go. And as long as lower courts never have to address the question of whether or not a rights violation was committed, no new precedent is established that would put officers on notice that their rights violations are actually rights violations.
Legislation has been introduced that would end qualified immunity at the federal level. There’s basically no chance it will pass, not with Senator Mitch McConnell deciding what bills get voted on. That leaves it up to the states, which are free to eliminate this SCOTUS construct at any time.
That’s what has happened in Colorado. The governor has signed into law a rejection of law enforcement’s favorite “get out of lawsuit free” card.
In a fitting tribute to Juneteenth, Colorado Gov. Jared Polis signed a sweeping law enforcement reform bill on Friday that marks one of the most significant changes to policing amidst the protests over the brutal killing of George Floyd. Among the new law’s many reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses, the Enhance Law Enforcement Integrity Act (SB20-217) allows plaintiffs to bypass “qualified immunity,” one of the biggest barriers to holding government agents accountable in court.
The law says officers cannot raise qualified immunity as a defense to civil actions. It’s part of a set of police reforms that includes mandated body cameras (with sanctions for failing to activate them), expanded reporting on officer-involved killings and officers who resign while under investigation, limits on force deployments during peaceful protests, and a ban on chokeholds. It also gives the state more options for decertifying officers, including the stripping of certification for failing to intervene when other officers are using unlawful force.
But there’s a lot of bad news to go along with this good news. First, ending qualified immunity at the state level does not prevent officers from using this defense in federal cases. Unfortunately for state residents, most civil rights lawsuits are handled at the federal level.
The deterrent effect is further muted by the law’s refusal to actually hold officers accountable for their own misconduct. Cops may no longer have qualified immunity to protect them in state lawsuits, but they’ll still have the state shielding them from the consequences of their actions.
The bill requires a political subdivision of the state to indemnify its employees for such a claim; except that if the peace officer’s employer determines the officer did not act upon a good faith and reasonable belief that the action was lawful, then the peace officer is personally liable for 5 percent of the judgment or $25,000, whichever is less, unless the judgment is uncollectible from the officer, then the officer’s employer satisfies the whole judgment .
Sure, some departments may fire a judgment-proof cop after they’ve been asked to open up their wallets a few times. But indemnification means cops can do bad things and expect someone else — state taxpayers — to pay for it. At the very most, an officer will be out $25,000. But collecting that judgment will be a rarity. Government employees know all the best ways to game a system and it will be the rare misbehaving cop that will have $25k laying around where litigants can find it.
It’s better than the nothing governments have done for years when asked to deal with systemic police misconduct. Acting like disappointed parents rather than responsible overseers of the public trust has turned many departments into receptacles for bad apples. Taking away a bad cop’s favorite shield is a start. More states should do the same thing. Maybe then the Supreme Court might be willing to take another look at its enabling of rights violations and remove this blight from the federal landscape.