As I begin writing this, a Fox News breaking news alert comes across my email: California suspect ‘down’ after wounding multiple officers in manhunt
Ordinarily I try to stay away from anecdotal arguments (arguments based on personal experience) because it is extremely unreliable. “Power lines cause acne! My aunt Suzie drove her car under a power line and the next day she had 12 zits!” I much prefer empirical evidence and scientifically-based studies. However, in this case, I’m going to violate that principal, because I think it’s important that you understand my background and experience in order to better understand and evaluate my argument.
I’m a Presbyterian. But that’s not important right now. More relevant, I’m an attorney. And for nearly a decade I spent the vast majority of my time defending law enforcement officers in civil lawsuits. So I have a passing acquaintance with police officers, and with qualified immunity — if by “passing acquaintance” you understand me to mean I was totally immersed in it 10 hours a day, 5 days a week (sometimes 6 or 7!), for several years.
In addition, I am, and for about the last 14 years have been, a POST-certified law enforcement officer. “POST-certified” is how we designate someone who has been through an accredited police academy and is certified by the relevant state agency (in my case, Alabama) as a bona-fide police officer, with arrest powers and everything that goes with it.
Here’s another bit of background: for the past dozen or so years I have taught legal and firearms classes as an instructor in a local police academy.
As a police officer, I have worked for four law enforcement agencies. As an attorney, I have worked with, probably, thirty all over the state of Alabama. As an instructor, I have taught, literally (by which I mean literally, not figuratively) thousands of police cadets, again, from all over the State of Alabama. In light of all that, let me fill you in on a few things about cops, some of which you probably already know, and some of which you probably don’t.
First, cops are woefully underpaid. But you probably already know that. In even the best-paying departments in Alabama, I know sergeants who have to take a second job in order to make ends meet. In fact, I should probably say that I don’t know a sergeant who doesn’t have to take a second job to make ends meet. And their wives have to work.
Second, the law enforcement community is the most lawsuit-averse community I know. Seriously, even as a lawyer, I was continually frustrated with the timidity with which my police comrades approached their jobs. Don’t get me wrong: they are the bravest, most courageous people I know. The old maxim is very, very true: they run towards the sound of gunfire when everyone else is running away. But, as a group, they are continually aware and terrified of legal liability and lawsuits. I used to joke that I didn’t know a cop who would change their toothbrush unless that particular model toothbrush was listed as authorized in their policies and procedures, and they had attended a full-day certification course in the proper use of that toothbrush.
During my hiring interview for my first law enforcement position, I was asked by the police chief why I wanted to be a police officer. My answer to his question is not super-relevant for purposes of this discussion; what I remember most vividly was our discussion of what I didn’t say. We discussed those people who want to carry a badge and gun because of the power they give over other people. I wish I could say I have never met any of those people, but the reality is I have. I have worked with law enforcement officers who, in my opinion, had no business wearing a badge.
But those people are in such a minority as to be nearly statistically invisible.
The vast majority of the people I taught, worked with, and defended were patriotic, civic-minded servants who wanted nothing more than to keep their community — their people — safe. And by “their”, I don’t mean people of the same color, or religion, or political beliefs. I mean people who live and work and have their being within the city/county/state limits where they live and work and have their being. Regardless of religion or political beliefs. Or color.
They ain’t doing it for the money.
So, combine low pay, high risk, high stress, and high liability, and who in their right mind would choose to be a police officer? There are only two real candidates: (1) the people whom I described above, who are civic-minded servants, who just want to make a contribution to their community, and who are willing to make monumental life sacrifices for their fellow-citizens; and (2) people who just want to have power and control over others.
All of this brings me to the real point I want to make: qualified immunity. We have been hearing a whole lot about qualified immunity in the news these past few days, but for those of you who are not intimately acquainted with federal law, let me give you a quick primer:
First, qualified immunity is a shield from civil liability only, and does not apply to criminal liability. If a police officer is accused of criminal assault, much less murder, qualified immunity will not help him one iota in criminal court. But it will help him if he is sued in civil court. Qualified immunity will not help Derek Chauvin.
Qualified immunity has a couple of basic elements. First, the officer must be engaged in conduct in which he has some discretion (read: personal judgment and decision-making) as to how he is going to act. So, for instance, if an officer uses a taser to subdue a suspect, but his department has a policy against using tasers, qualified immunity is not going to help that officer, because he did not have the personal discretion to choose to use a taser: his department had already made that decision for him.
Second, the officer has to have violated a constitutional right of another person. And that right has to have been “clearly established” before the officer violated that right. That simply means that a controlling court (state supreme court, U.S. Supreme Court, etc.) has to have clearly indicated that the officer’s conduct was unconstitutional before the officer engaged in that conduct. That’s only fair; you can’t hold an officer accountable for unconstitutional conduct which he or she didn’t know was unconstitutional. Or, to put it another way, my wife shouldn’t get mad at me for putting plastic cups on the bottom rack of the dishwasher if she never told me before I did it that I shouldn’t put them there. Yes, it was a bad scene (and could have been so much worse!) when my son put a metal fork in the microwave, but I can’t really get mad at him if I never told him not to do that. You get the picture.
So, with that quick legal primer (Qualified Immunity 101), we come face-to-face with our problem. If we take away qualified immunity from already lawsuit-jittery cops, we will lose a whole lot more of candidates from category #1 (good cops) who will simply conclude that the risk is just not worth it, and will be left with a whole lot more candidates from category #2 (power-hungry cops). And since we need to fill positions, many more of those bad apples will be hired, and put out on the streets. With guns.
What was the problem we are trying to fix with abolishing qualified immunity again? Oh, that’s right — bad cops! How’s that going to work out for us? Rather than reducing the number of negative incidents, we are going to see an increase. Just what we need, right?
David French, who is one of my ideological and theological (but not biological) brothers, and I part company on this issue. He has called repeatedly for the abolition of qualified immunity (see here, here, here and here) (some of this is behind a firewall). But in his arguments, he routinely mischaracterizes the facts and the law. In one essay, he writes:
Are we really to believe that a police officer doesn’t know he shouldn’t pound on the wrong door and blow away the innocent occupant unless a court said so in a case, say, five years before? Do we really believe police officers and university administrators are diligently reading such cases as they are decided anyhow?
Of course we aren’t supposed to believe that. Police officers don’t intentionally pound on wrong doors or blow away innocent occupants. They know that’s wrong. I’m guessing that the police officer in question . . . I don’t know . . . didn’t realize it was the wrong door? Didn’t realize that the guy pointing a gun at him wasn’t the drug dealer he was trying to apprehend? Police officers are people, and David knows as well as anyone that people are flawed and liable to make mistakes. (That came out wrong — I don’t mean to imply that David is any more flawed than anyone else. But his theological beliefs will support my premise.)
And, no maybe police officers and administrators aren’t diligently reading court cases about constitutional violations. But that’s not the standard. The standard is whether the officers knew or should have known that their conduct was a constitutional violation. Actual knowledge is not required; constructive knowledge is sufficient.
I should note that in at least three of his essays on this subject, David makes his argument based on — you guessed it — anecdotal evidence. It’s not that I think David is wrong in characterizing his examples as egregious judicial decisions — I don’t. They are horrific. But compared to the plethora of horrible things that could and probably would happen if we abolished qualified immunity — the entire nation would burn, not just Minneapolis — an extreme minority of bad judicial outcomes do not justify the cure. Finally, David does not cite the multitude of court cases (far more than David’s examples) where law enforcement defendants are denied qualified immunity, and are forced to account for their actions.
So, yeah, while we’re telling anecdotes, more on the California suspect who shot four police officers:
The District Attorney of San Luis Obispo County tweeted that four law enforcement officers had been shot.
The events started unfolding around before dawn Wednesday, when Lira allegedly fired at police cars as they entered downtown Paso Robles.
Two sheriff’s deputies heard gunshots but didn’t see the attacker until they were outside their patrol car and gunfire targeted them. One was hit in the head. His partner fired back and dragged the deputy behind a police car. The wounded deputy, Nicholas Dreyfus, 28, had a good prognosis Thursday after surgery.
While officers searched for Lira, they received a report of a body near a train station and found a 58-year-old man shot to death on the tracks. He appeared to be a transient who was camping out overnight. It wasn’t immediately clear when he was shot.
The attack came just five days after law enforcement officers were ambushed farther north in the community of Ben Lomond. . . .
Santa Cruz County sheriff’s Sgt. Damon Gutzwiller, 38, was killed and another deputy injured Saturday in an attack by an Air Force sergeant armed with homemade bombs, an AR-15 rifle and other weapons, authorities said. Sheriff Jim Hart said the suspect, Steven Carrillo, was intent on killing officers.
Yeah, let’s abolish qualified immunity. These guys are bulletproof.
