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February 01, 2024

Midyear 2024: What’s the future of qualified immunity?

For the last decade, a spate of police shootings of unarmed Black people has elevated the issue of qualified immunity in the national conversation.

Protection from the fear of frivolous legal action is viewed as a necessity for many in the police and municipal community, but where does that protection turn into a way to avoid consequences for abuse?

This timely topic will be discussed at the program “Constitutional Policing: The Case for and Against Qualified Immunity,” to be held Feb. 2 at the ABA Midyear Meeting in Louisville, Kentucky.

“While the doctrine is intended to protect officials from frivolous lawsuits, it has been the subject of criticism and debate within communities themselves in terms of what represents police accountability and reform,” said Cynthia Swann, chief of staff of the Hip Hop Caucus in Washington, D.C., who will moderate the discussion.

Panelist Wylie Stecklow, of Wylie Stecklow PLLC in New York and an adjunct professor at Fordham Law School, said he intends to explain how qualified immunity came about and will “connect the dots,” including pointing out the connections between qualified immunity and Jim Crow.

He plans to show how qualified immunity, which was introduced in 1967, was repeatedly “expanded to a breaking point so it now protects all but the most incompetent of police officers.”

The other panelists, who will speak about their experiences with qualified immunity, are: C. Elisia Frazier of Frazier Law and Consulting LLC in Pooler, Georgia, and former managing deputy city attorney in Atlanta; Ronald A. Norwood, a member of Lewis Rice in St. Louis; and Juan R. Thomas, of counsel at Quintairos, Prieto, Wood & Boyer P.A. in Aurora, Illinois, and founder and principal of The Thomas Law Group.

“It’s not going to be an echo chamber,” assured Stecklow, the author of the ABA book, “Constitutional Policing: Striving for a More Perfect Union,” adding that some of the panelists will explain how qualified immunity helped their communities.

Some of the arguments about reforming qualified immunity could lead to increased accountability for police officers, but there’s also the concern that “qualified immunity has shielded those who have done the most egregious actions against communities, especially communities of color,” so that goes back to history, training and “lack of humanity,” Swann said.

Stecklow expects a good conversation identifying how the existence of some sort of immunity may continue to exist, similar to that for the judiciary and prosecutors.

“My feeling is if you have good training and you have the right, good people then you’re not going to have a lot of misconduct and you’re going to have accountability,” said Stecklow. “And that’s what we need from law enforcement more than anything else.”

In addition to a better understanding of how qualified immunity came into effect, Swann hopes attendees will come away with “a point of reference in terms of how to work with their state and local governments in order to amend their qualified immunity process.”

The program is sponsored by the ABA Section of State and Local Government Law and co-sponsored by the Section of Civil Rights and Social Justice and the Commission on Racial and Ethnic Diversity in the Profession.