This column is reprinted with permission from USA Today where it was originally published as part of a series examining qualified immunity. The project is made possible in part by a grant from Stand Together.

BY PROF. JOANNA SCHWARTZ

Congressional leaders have given up on their effort to enact wide-ranging police reforms inspired by the murder of George Floyd. Throughout the negotiations, a key sticking point was a legal doctrine called qualified immunity.

Sen. Tim Scott, R-S.C., described qualified immunity reform as a “poison pill” to negotiations, and Republicans’ refusal to support a bill limiting qualified immunity’s protections is among the reasons the George Floyd Justice in Policing Act failed.

But qualified immunity never should have been a poison pill to reform.

I have spent much of the past decade studying qualified immunity. And all evidence points to a single conclusion: Arguments used to preserve qualified immunity – and kill reform efforts – have no basis in reality.

Violated but not vindicated

Qualified immunity protects officers from being sued for money damages, even if they have violated the Constitution, unless the plaintiff can find a prior court decision with nearly identical facts.

For example, in a case called Kelsay v. Ernst, an officer slammed a woman to the ground – breaking her collarbone and knocking her unconscious – after she began to walk away from him at a public pool.

Prior cases held that police cannot use force against someone who is not a threat, simply because they are acting disrespectfully. But there was no prior case in which “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.” So the officer got qualified immunity.

Decisions like Kelsay have inspired reform advocates across the ideological spectrum to argue that qualified immunity undermines government accountability.

A 5th Circuit Court of Appeals judge appointed by former President Donald Trump, Don Willett, has described the doctrine as “an Escherian Stairwell” that “leaves victims violated but not vindicated.”

Federal judges across the country – appointed by every president, Republican and Democrat – have issued opinions sharing his view.

Defenders of qualified immunity make dire predictions about how the world would be worse off without it.

Last year, Rep. Jim Banks, R-Ind., said ending qualified immunity was “another way of saying abolish the police” because, without qualified immunity, “criminals would … open endless frivolous lawsuits against the officers who put them behind bars” and officers would be “forced to quit, because they couldn’t afford to serve any longer.”

When the New Mexico Legislature considered a statute that would allow state-law causes of action without qualified immunity, the editorial board of the Albuquerque Journal warned: “Do we really want to take a rookie Albuquerque Police Department officer working graveyard in high-crime Albuquerque, making maybe $60,000 a year, and put his or her house on the line for doing something in response to a 911 call that in 20-20 hindsight might have been done better?”

Unsupported by facts

In response to a similar bill pending in the Virginia General Assembly, the executive director of the Virginia State Police Association argued that ending qualified immunity “would open the door to countless frivolous lawsuits and most definitely become another impediment to hiring and retention.”

It’s these types of threats that might have caused the Virginia legislature to defeat the bill.

But these dire predictions are unsupported by the facts.

The Supreme Court has clearly said that officers do not violate the Constitution when they make split-second mistakes. An officer violates the Constitution only when they use force unreasonably, taking account of the “tense, uncertain, and rapidly evolving” circumstances in which force was used.

In fact, the court has specifically instructed that lower courts should focus on what the officer perceived at the time “rather than with the 20/20 vision of hindsight.”

99.98% cases not paid by officers

Even if officers are found to have violated the Constitution, they are virtually certain not to pay anything from their own pocket. When I studied six years of lawsuit payouts in 81 law enforcement agencies across the country, 99.98% of the dollars paid were paid by local governments, not officers.

One of those departments was Albuquerque: No officers paid anything toward settlements and judgments in my six-year study period. In fact, Albuquerque paid $1 million to settle a case brought against a police officer who had been sent to prison for life for raping and sexually assaulting women on the job.

Ignoring the realities of qualified immunity has made a mess of our system of police accountability.

Joanna Schwartz is a professor at the UCLA School of Law.