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February 02, 2024

Qualified immunity: A necessity or a tool that exploits race and class?

It is said that qualified immunity balances two important interests: “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction and liability when they perform their duties legally and reasonably,” said Cynthia Swann, chief of staff of the Hip Hop Caucus in Washington, D.C.

Swann was the moderator at the program “Constitutional Policing: The Case for and Against Qualified Immunity,”  held Feb. 2 at the ABA Midyear Meeting in Louisville, Kentucky.

Three panelists addressed this issue, one looking at the origins of qualified immunity, one speaking for keeping the doctrine and one for its elimination.

The concept of qualified immunity reaches back to the rise of Jim Crow laws after the Civil War that legalized racial segregation, said Wylie Stecklow of Wylie Stecklow PLLC in New York and an adjunct professor at Fordham Law School. He drew a line from there to a case in 1961, when clergy were arrested on a Freedom Ride and the court used a “good faith standard” to say the police were not responsible to know that arresting them for “unlawful assembly” was unconstitutional and were therefore immune for prosecution. But he said the concept of qualified immunity was then expanded in 1982 and 1986 decisions “to protection of all police officers but the plainly incompetent or those who knowingly violate the law.”

Today, said Stecklow, a contribtor to the ABA book, “Constitutional Policing: Striving for a More Perfect Union,” circuit judges want the Supreme Court to fix unresolved issues surrounding qualified immunity, but the court doesn’t seem interested in ruling on it. In recent years, it has denied certiorari in multiple cases where qualified immunity was an issue, most recently in October 2023.

Ronald A. Norwood, a member of Lewis Rice in St. Louis, served for seven years as counsel to the St. Louis Police Department and represented the internal affairs office. That experience led him to “understand and appreciate the challenges that police officers face on a daily basis.” For the last decade Norwood has represented the city of Ferguson, Missouri, “arising from the unfortunate shooting death” of Michael Brown.

“Why is there a need to protect police officers even in cases where it’s clear that the officer violated the constitutional rights of that particular citizen?” he asked. “Policing is a tough, tough job,” where officers are required to “make split-second life and death decisions,” Norwood said.

“Courts have held up qualified immunity as a limited liability shield to allow them to do their jobs without hesitation,” he said, adding that absent clear law police officers should not be expected to “figure out what the right thing to do would be.”

“Police officers should be allowed some leeway to mess up,” he said; otherwise, no one will sign up for the job.

Noting that Ferguson is having trouble recruiting police officers and that St. Louis’ police department is understaffed, Norwood said, “qualified immunity … plays an essential role in helping to recruit and to train police officers and keep us safe from a lot of bad actors.”

In response, Juan R. Thomas, of counsel at Quintairos, Prieto, Wood & Boyer P.A. in Aurora, Illinois, and founder and principal of The Thomas Law Group, pointed out the absence of two factors in the discussion of “this critically important issue”: race and class. He said qualified immunity “erodes public trust.”

As a town clerk in suburban Aurora, Illinois, Thomas saw how white people respected and worked with the police. But later, serving as a criminal defense lawyer representing Black people on the West and South sides of Chicago, he saw firsthand the mistrust between his clients and the police.

When a lawyer or a doctor makes a mistake, they can be disbarred or lose their license, Thomas said. “But police get protected because of race and class,” he said, and their mistakes likewise are rooted in race and class: Black men in a hoodie look dangerous compared to “a white woman in a jogging suit.”

Thomas said we need to reexamine the doctrine because it gives “almost 100% cover” for police “to do whatever they want, whenever they want.”

The program was 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.