Editors’ Note: This is the second in a series feature, in which VF editors may join along with volunteer contributors to discuss a contemporary topic. This “real time” installment features Barbara Levine, Barbara Johnson, Michael Fruitman, and Jim McCarthy. The initial effort can be viewed (January 4, 2020) at https://wp.me/p9wDCF-2aa. Let us know what you think.
“Qualified police immunity” in shooting incidents has functionally become an unqualified immunity clad in legal nuance and, sometimes, ingrained in police union agreements. What reforms ought to be made, including those for sheriffs’ offices?
Fruitman: In the September 28, 2020, issue of VoxFairfax (Responsibility v. Immunity, https://wp.me/p9wDCF-1OR), we examined the concept of qualified police immunity, which was becoming a flashpoint in an increasing number of altercations between police and citizens. Under this concept, law enforcement officers are not held personally liable for “frivolous lawsuits” and financial liability in cases where they acted in “good faith in unclear legal situations” (per the Supreme Court). Starting about 2005, courts increasingly applied the doctrine to cases involving the use of excessive or deadly force by police, leading to widespread criticism that it has become a nearly failsafe tool to encourage reckless police behavior, often in instances involving Black people. Especially in light of the frequent incidents in 2020 in which police accountability was nonexistent, it is time to reexamine and narrow such a rule.
Levine: While qualified police immunity was once thought necessary to encourage candidates to join the police force, the sheer number of police shootings–especially with regard to people of color–demands that we revisit this concept as well as addressing the entire culture of policing in this country. Police in general, including sheriffs, must return to the original concept of citizen protection. While sheriffs’ departments often consider themselves a different entity because of the manner in which they are selected and governed, the culture remains the same.
Not every citizen, especially those of color, should be immediately viewed as a suspect. Law enforcement should not be modeled after the military. The missions and goals are actually diametrically opposed. Police/sheriffs should be taught to shoot to wound, not kill, and only in truly life-threatening situations. Police/sheriffs need to be better educated in dealing with the mentally ill. In order for the current culture to change, qualified immunity must be removed and rescinded so that police/sheriffs are forced to think twice before killing another American citizen.
Johnson: Whenever the courts allow any degree of immunity to an individual or service sector, it eliminates the civil rights and any satisfying level of constitutional justice for the victim. As a real estate agent, I have frequently had to discuss with landlords the disadvantages of renting to persons with “diplomatic immunity” and have had clients accept these persons only to suffer the consequences of someone who knows they are above the law and will not be held accountable for damaging the property or failing to pay the rent. This behavior towards another’s property is not learned but ingrained from birth and is a part of their culture and sense of entitlement. The excessive police brutality that we continue to witness today is no different, it is ingrained from childhood in the police officers perpetrating these heinous and brutal acts, primarily against African Americans. No classroom or additional training will change a person’s behavior that is grounded in bigotry and racism. I would invite all of you to watch the recently aired Independent Lens documentary on WETA January 12. It showed a cross-section of our country celebrating this country’s freedom on July 4th and many of those participating were astonishingly racist, open KKK members, and willing to do whatever it takes to maintain their white sovereignty. When you give persons with this background a gun and badge, and impunity from the law, it is a recipe for violence against persons of color. To me the more looming and greater question is, how do we prevent these persons from ever becoming police officers? While ending “qualified immunity” would be one practical method of holding these violent, racist police officer accountable, it’s going to take a seismic shift in the enforcement culture to change the behavior of some of those in uniform.
Levine: We all agree that an enormous change in the culture of policing is needed before we can hope to weed out systemic racism. Sadly, we also need to add in our judicial system and many of the people who play a major part in it–prosecutors, public defenders, and judges. Here’s a radical thought: follow more of the British system and do not arm regular beat cops. Have armed units for situations where the perpetrators are heavily armed, but for most calls, have “peace officers” come in to try to defuse a problem rather than inflame it. Of course, this requires that we also do all we can to get guns off the street and limit gun sales, ban automatic weapons, and limit the amount of ammunition any individual can have.
Fruitman: It has been posited that power changes you. But I agree with others who say that power reveals you. So it is with law-enforcement officers. It is easy to see how the power of badge/gun/authority can turn some into bullies (“Because I said so”; “I make the rules”). As we have seen, especially between white officers and Black community members, this is all-too-often the case. Others, we hope, have a personality that focuses on helping the public. Attention must be paid to recruitment: what kinds of people become officers? Are they adequately screened? Some departments train officers to defuse situations rather than escalate them; this is needed everywhere. Training also needs to focus on interactions among two or three officers on one call. Do they defer to the person with the most seniority? This happened with the George Floyd case. Ironically, just as in aviation, how members (police or pilots) interact with each other is very important. I like Ms. Levine’s notion of peace officers; what a change that would be! Finally, back to qualified immunity. While its impetus may have been honorable, in practice, it is a dodge. Individuals need accountability to help determine their behavior. Communities must face down unions that try to insist on this. Not being immune from prosecution does not necessarily mean one will be prosecuted or convicted, it simply levels the playing field.
McCarthy: From inception to date, this nation has wrestled with the primacy of civilian authority over both military and law enforcement. That authority is virtually not challenged in the former as the President serves as Commander-in-Chief. As personal and property security is threatened more closely to home, the public policy distinction becomes more intense and complex and less distinct…. Independently elected sheriffs add another aspect of difficulty to civilian authority, as some have expressed defiance to state laws that establish restrictive gun controls. In Virginia, several counties that have adopted resolutions asserting themselves as Second Amendment sanctuaries include language encouraging resistance by local law enforcement as well as statements to withhold funds to implement the legislation. I think “defund the police” is a terrible expression of public policy. Refund the police, i.e., reprioritize objectives, is a better expression encompassing the use of social or psychological services, training, selection of personnel, and is a less confrontational approach.