Since the incident in Minneapolis involving George Floyd, there has been a growing hue and cry for the abolishment of qualified immunity for law enforcement officers. This article will address the question and its ramification.
Qualified immunity provides public employees with protection against personal liability for actions taken in the performance of their duties.
The United States Supreme Court, in a case titled Harlow v Fitzgerald, 457 U.S. 800 (1982), created a new term called “Qualified Immunity.” The Court held that:” Government officials whose special functions or constitutional status requires complete protection from suits for damages — including certain officials of the Executive Branch, such as prosecutors and similar officials, see Butz v. Economou, 438 U. S. 478, and the President, Nixon v. Fitzgerald, ante p. 457 U. S. 731 — are entitled to the defense of absolute immunity. However, executive officials in general are usually entitled to only qualified or good faith immunity. The recognition of a qualified immunity defense for high executives reflects an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority. Scheuer v. Rhodes, 416 U. S. 232. Federal officials seeking absolute immunity from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope. Pp. 457 U. S. 806-808.”
There is no immunity from criminal prosecution for violation of state or federal criminal laws.
The abolishment of the immunity would force police officers to carry liability insurance, the annual cost of which would be prohibitive. Attorneys and doctors pay upwards of one hundred thousand dollars per year for malpractice insurance and there are a limited number of companies that will even write a policy of this type. That cost alone is more than the gross salary of most police and corrections officers.
The result would be that the unions who negotiate labor contracts for their membership would demand that the employing agency pay for the insurance into their written collective bargaining agreements. That additional expense would then be paid for with tax dollars of the citizens, defeating the goal of some who seek to personally punish their government employees for performing the duties of their office.
Qualified Immunity does not extend to the employing agency if the action taken was within the policy of the employer. Governmental agencies can claim sovereign immunity protecting the agency from civil liability.
Small towns across the country are disbanding their police departments and entering into contracts for police service with other agencies. The primary reason for this trend is the financial burden of liability and costs of benefits for employees.
The reality is that many of the prosecutions of officers involved in use of deadly force are based on political rather than legal considerations. Prosecutors are elected and serve terms in office. When they look out the window of their upper floor office, they see protestors outside carrying signs and remember that these are the people who will decide whether they get to continue to hold the office and know they will be able to deflect, when the case against the officer fails, any criticism by blaming a jury. The has been seen in cases in Baltimore, Cincinnati and numerous other cities. Ruining he life of a single officer is a small price to pay to appease the voters they need.
In the final analysis, public employees are citizens with all the of the same rights and privileges that are afforded to other and to penalize them personally for their official acts is just plain wrong. There are few who will claim that intentional acts by public employees should not be punished to the fullest extent of the law.