Police Reform: Limiting Qualified Immunity

The police aren’t exactly in good odor of late.  The killing of George Floyd brought the matter to the forefront of public discourse.  Two years later, police in Uvalde, Texas, apparently made a bad situation utterly horrifying.  Exactly what happened between the first reports of a shooter at the school and the ultimate storming of the classroom remains unclear.  But it looks as if the police on the scene received conflicting orders and conflicting information.  As children inside the classroom called 911 begging for help, police outside were hampered by semi-functional radios and superiors who apparently believed the shooting had stopped.  Whatever did happen, “serve and protect” didn’t.

So the police once again find themselves under attack.  Predictably, some of those attacks have merit and some don’t.  The progressive notion that the main threat to poor communities comes from the police is, of course, utter nonsense.  So is the resulting call for a reduced police presence.

But the correct response to the progressive narrative isn’t maintaining the status quo.  Believe it or not, the mere fact that progressives have an animus against the police, doesn’t mean police behavior is above reproach.  It needs improvement.  We the People must be able to see the police being what they’re supposed to be – our servants and shields against crime.  Leftists aren’t the only ones who’ve experienced officers who seem to take it for granted that they can get away with just about anything with no fear of punishment.  Look again at the Derek Chauvin videotape and notice how calm he was.  His face was utterly impassive as he slowly asphyxiated a defenseless man.  Here was an officer who had no fear of his actions being found wanting.  That they eventually were turned out to be solely a matter of dumb luck – a chance video, without which he’d almost certainly still be on the force.

The point being that the police, their disciplinary procedures and the laws governing same cry out for reform.  That reform should be the subject of bi-partisan consensus and should consist of three things: improved police disciplinary procedures, a limitation on qualified immunity and fully-funded departments.  The Right should agree to full funding and a limitation on the power of the state to abuse its citizens and the Left should agree to cutting back on qualified immunity and greater power of departments to discipline bad actors.

First, qualified immunity.  Qualified immunity is necessary for the police to do their jobs effectively.  QI shields officers (but not cities) from civil liability unless they violate established laws and/or clear legal precedents.  The nature of police work is that sometimes officers are faced with split-second decisions that can be matters of life or death.  They must be able to know, in that instant, what is and isn’t permitted and not be second-guessed by lawyers years after the fact. 

So QI is sensible and necessary.  But it also casts far too wide a net.  Just how wide can be gleaned from the recent 5th Circuit Court of Appeals decision in the Tony Timpa case.  Timpa of course was the schizophrenic Dallas man who called 911 for help because he was off his meds and behaving erratically.  Five Dallas police officers managed to turn the sad distress of a helpless and non-dangerous man, who’d done exactly what we want him to do – call 911 - into his death.  They did to him what Derek Chauvin did to George Floyd, but for about six minutes longer.  Into the bargain, once Timpa was dead, they made sick jokes about him.  Again, were those the actions of officers who had the slightest concern about the possibility of discipline?

Fortunately for decency and common sense, the 5th Circuit ruled that the Timpa family’s lawsuit against the officers can proceed to court.  The U.S. Supreme Court declined to issue a writ of certiorari, so the officers’ claims of qualified immunity will not prevent civil liability on their part.  Read the opinion for the full shock of what the police did.  Read it also for how very difficult it is for plaintiffs to overcome a claim of QI by officers who commit even the most outrageous abuses against private citizens.

For a claim of QI to be overcome, there must be either a previously decided case identical, or very nearly so, to the one before the court that holds the police actions to violate constitutional or statute.  That’s a usually insurmountable obstacle for plaintiffs.  Each individual set of facts is too different from previous ones for injured plaintiffs to prevail over claims of QI.  Indeed, the trial court in the Timpa case found the officers to be protected by QI despite the fact that no sensible civilian in the same situation would have done what they did. 

Plus, the officers in the Timpa case violated DPD training and directives that were clearly applicable to Timpa’s situation.  Those directives required that officers faced with a person in Timpa’s condition place him in a seated position or lay him on his side.  Amazingly, they did neither, but their violation of those directives and training barely entered into the court’s consideration of QI.

It should.  Lawmakers should restrict qualified immunity so that both violations of legal precedent and of department directives will be sufficient to impose civil liability on officers.  After all, there’s nothing arcane about the training and directives police receive and they should be fully familiar and comply with them.  In addition to helping to compensate plaintiffs, limiting qualified immunity in this way would improve police behavior by encouraging officers to know their directives and comply with their training. 

In my next piece on police reform, I’ll discuss discipline of officers.

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