In this July 4, 2020,file photo, thousands of New Yorkers join the Coalition to Honor Black and Indigenous Activists at Fort Greene Park in Brooklyn, New York, for a massive protest march to honor those activists and demand justice for all victims of police brutality.
CNN  — 

The fight in Congress to reform how the nation’s police officers go about their jobs has reinvigorated a discussion over so-called “qualified immunity,” a controversial federal doctrine that protects officers accused of violating the Constitution while on duty.

While abolishing the more than 50-year-old doctrine remains one of the main sticking points between Republicans and Democrats over any deal on passing the George Floyd Justice in Policing Act, a look at reform efforts around the country shows that several states have forged ahead with eliminating the protection.

Since Floyd was killed last May by then-Minnesota police officer Derek Chauvin, at least 25 states have taken up the issue and considered some form of qualified immunity reform, including Colorado, New Mexico, Connecticut and Massachusetts, which have passed legislation to end or restrict the defense, according to the National Conference of State Legislatures.

The once-obscure federal doctrine – which can be abolished across the country only by the Supreme Court or Congress – became a new target for reform in the wake of Floyd’s killing.

At the federal level, the issue has been a point of contention for Democratic and Republican lawmakers, but the Chauvin conviction this week has already reignited bipartisan talks to advance police reform legislation in Congress. Prospects for two bills introduced by Democrats have been largely unclear due to an overwhelming lack of GOP support.

The George Floyd bill, which passed in the House in March, would end qualified immunity for all local, state and federal law enforcement officers, but it does not have the 60 votes required to advance in the Senate in its current form. Separately, the Ending Qualified Immunity Act has also been introduced by House Democrats and would apply to all state and local government officials, including law enforcement, but its prospects are slim.

The issue has been a source of contention for Democrats and Republicans in Congress, but on Wednesday, Republican Sen. Tim Scott of South Carolina offered a compromise that has given new optimism about the bill’s prospects: Police departments should be held financially liable in civil suits, not the individual officers.

Qualified immunity, established by the Supreme Court in 1967, effectively protects state and local officials, including police officers, from personal liability unless they are determined to have violated what the court defines as an individual’s “clearly established statutory or constitutional rights.” The doctrine can be used only in civil cases, not criminal, and allows victims to sue officials for damages only under those circumstances.

Critics and reform advocates say that the doctrine gives officers free rein to use excessive force with impunity and argue that what it defines as “clearly established” law remains largely elusive and difficult to prove, as it requires the victim to present a previous case with nearly identical circumstances that a court ruled as unconstitutional. They also assert the law helps officers escape accountability and prevents victims from achieving justice.

Law enforcement officials and defenders of the doctrine have pushed back against legislative efforts, arguing that police officers should be able to do their jobs without fear of being sued or being held civilly liable for incidents that occur while carrying out their duties.

Federal civil rights laws are more powerful in terms of compensating victims and providing “meaningful remedies” for people whose rights have been violated, which makes it more important that the federal law change, according to Brandon Garrett, professor of law at Duke University School of Law and faculty director of the school’s Wilson Center for Science and Justice.

“For decades, everyone just accepted that qualified immunity was a given because it was unlikely to change on the federal level,” said Alexander Reinert, a professor at Benjamin N. Cardozo School of Law at Yeshiva University who authored a recent study on the doctrine. “What this new legislative activity from the states shows is that there’s actually a role for states to play in reforming this doctrine. They are deciding that the harms of qualified immunity far outweigh whatever benefits the doctrine provides.”

The anticipated results, according to Reinert, will be more accountability among police officers and greater protection of rights for victims of constitutional violations, and courts will be better positioned to clearly establish the law.

State and local governments have already passed reforms

Colorado and New Mexico were the first states to pass legislation that effectively created their own versions of the statute, allowing people to sue designated government officials by creating a new pathway under their state constitutions and barring qualified immunity as a defense. Qualified immunity reform bills are still pending in states such as New York, California and Texas.

Colorado’s bill, which was passed last June, applies only to law enforcement officers and allows plaintiffs to sue under the new law’s “civil action for deprivation of rights” in state court. New Mexico enacted the state’s Civil Rights Act earlier this month, which has a broader reach as it eliminates qualified immunity as a legal defense to state claims for all government officials.

It’s still too soon to measure the impacts of Colorado’s law, but many civil actions that would have been filed in federal court are now being filed in state court, making it easier for people to pursue their claims, according to Denise Maes, the public policy director of the American Civil Liberties Union of Colorado, who helped draft the bill.

Connecticut and Massachusetts have passed much more limited versions of qualified immunity reform. Under Connecticut’s provision, immunity is limited in state civil claims against law enforcement officers unless they “had an objectively good faith belief” that their actions were justified.

The law in Massachusetts limits the applicability of the defense and states that residents are entitled to “bias-free professional policing.” A newly established commission can revoke an officer’s certification if they are deemed “not fit for duty” and pose a danger to the public – only then can cops be stripped of their immunity in civil rights cases.

City governments are also taking on the measure. In March, the New York City Council passed legislation that would allow citizens to sue police for violations of their Fourth Amendment rights and end qualified immunity as a defense for officers, becoming the first city to do so. The bill, which is expected to be signed into law by Mayor Bill de Blasio, requires the city law department to track and publish civil actions online.

The Supreme Court has expanded the protection

In 1967, the Supreme Court created the judicial doctrine of qualified immunity, protecting police officers from liability in civil rights cases if they believed they were acting in “good faith” and their actions had “probable cause.”

The doctrine was established in response to the Civil Rights Act of 1871, which had been enacted to fight violence by the Ku Klux Klan in the aftermath of the Civil War. A section of that act, now generally known as Section 1983, allows citizens to sue state and local government officials and employees for compensatory damages for violations of their Fourth Amendment rights.

In 2001, the Supreme Court issued a decision that created two steps in the litigation process: The court has to determine a clear violation of the Constitution, and then the violation of a victim’s rights must be “clearly established.” In 2009, the court loosened restrictions further. The doctrine now protects “all but the plainly incompetent or those who knowingly violate the law.”

As widespread protests began to take place last June for police reform, the Supreme Court rejected hearing eight qualified immunity cases involving police officers, according to the National Conference of State Legislatures.

Over the past 20 years, the Supreme Court has expanded the scope of the doctrine to such an extent that legal scholars have started to attack the court’s methodology and approach in qualified immunity cases, according to Sheldon Nahmod, a professor at the Illinois Institute of Technology’s Chicago-Kent College of Law who’s an expert on constitutional law and civil rights.

The effect, according to Nahmod, is that it’s virtually impossible for victims of police misconduct to win a case if they can’t present a previous case with matching circumstances that was ruled unconstitutional.

“In police cases generally, the Supreme Court has been concerned with the fact that officers have to make split-second decisions,” Nahmod said. “The Supreme Court is saying, ‘We need to be aware that they require some slack.’ You need an egregious case before a defendant will be denied qualified immunity.”

In fast-evolving police encounters, the high court has recognized that officers often have to make “split-second” decisions to use force, which is sometimes deadly. The standard allows officers to shoot someone if they have a “reasonable” belief in that moment that the individual poses a dangerous threat to the officer or the larger community – even if that threat turns out to be mistaken.

Settlements and judgments in these civil cases account for less than 1% of most local government budgets, according to UCLA Law professor Joanna Schwartz, who authored studies on qualified immunity. It’s unlikely, she said, that eliminating qualified immunity would cause a dramatic change in the rates in which plaintiffs win or lose civil these cases as critics suggest. The financial burden on local governments would remain largely the same.

“They say qualified immunity is intended to weed out the most insubstantial cases,” Schwartz said, “but I actually think it weeds out the most substantial cases, because those are cases where there’s otherwise evidence of a constitutional violation and the only way to get it dismissed is with a prior court decision that has virtually identical facts.”

The debate over personal accountability

The most common pushback against eliminating qualified immunity argues that it will deter police officers from using necessary force on duty out of fear that they will be held financially liable. Police officials also contend that it will harm the recruitment and retention of officers at a time when agencies are confronting widespread public scrutiny in the wake of several high-profile incidents of police use of excessive force against Black Americans.

But the majority of police officers are not involved in high-profile cases where misconduct is at the forefront, according to Nick Sibilla, a writer and legislative analyst for the Institute for Justice, a public interest-driven law firm.

“Qualified immunity is only shooting the ‘bad cops,’ so the fact that law enforcement is trying to protect it is really telling,” Sibilla said. “If officers did have to use force and were justified using it, that would be completely protected under the Fourth Amendment.”

Michael Harrison, the police commissioner of the city of Baltimore and the president of the board of the Police Executive Research Forum, told CNN that police officials are concerned that ending qualified immunity could lead to a “mass exodus” from policing if they believe there is a risk that they could be personally sued.

“The fear is that they could lose everything for making a mistake on the job, even if they don’t have ill will intent,” Harrison said. “Many officers then take the position that it’s not worth it to be in this profession.”

Officials have focused on the “unintended consequences” of ending qualified immunity, according to Harrison, and the concern that police morale and performance will diminish out of fear of being hit by civil suits.

An investigation by The Denver Post looked into statewide data from the Colorado Peace Officer Standards and Training Board since the new state statute went into effect. The study found that there was a decline in the number of Colorado police officers who left the profession in 2020 compared with the two years prior, according to the Post.

In March, dozens of former law enforcement officials authored a letter to Congress on the need to end qualified immunity, saying they “understand firsthand why police are concerned about losing the qualified immunity defense, and we want to be clear that this concern is not warranted.” They argued that the doctrine does not serve as the “lone shield” protecting officers from lawsuits.

One major sticking point in qualified immunity debates focuses on the question of whether an officer will be responsible for paying massive financial settlements in civil cases if the doctrine goes away.

Historically, research conducted by UCLA’s Schwartz revealed, cops “are virtually always indemnified” by law enforcement agencies or city governments that have covered the settlements for officers – in more than 99% of civil rights cases. No officers were found to have been bankrupted by settlements in the study.

City governments can opt out of paying for an officer’s legal fees in some circumstances, but Schwartz says that very rarely happens. However, police officials are concerned that officer morale will diminish if they believe the city is not responsible for them while they are acting in the line of duty, which can affect their performance in combating crime, according to Harrison.

“That’s the one protection that officers have that makes them willing to go out and do this work,” Harrison said. “They are being asked to go and deal with violent situations and compelled to perform these jobs on behalf of the city.”

“It’s certainly possible that if qualified immunity went away, that would be an indication to law enforcement that legislatures were not protecting them,” Schwartz said. “But I think that would be based on a myth as opposed to the way in which it actually functions on the ground.”

State statutes across the country, not qualified immunity, obligate local governments to pay officers’ legal fees as well as settlements and judgments in civil cases, according to Schwartz. Even without the doctrine, indemnification agreements that vary from state to state will still exist.

The key driver behind many calls to reform qualified immunity is the lack of personal accountability for officers accused of infringing on citizens’ rights – and the notion that officers should pay the financial restitution that is owed to their victims.

Some experts, including Schwartz, say police officers should not be personally responsible for financial settlements because victims would not be able to recover the money to which they are entitled. Civil rights cases can cost thousands of dollars, and settlements can stretch into the millions, which makes it virtually impossible for police officers to pay out of pocket. Federal law already allows citizens the opportunity to sue individual police officers at any time.

“If a lawyer knows ahead of time that the officer is not going to be identified, who has no resources, it makes no financial sense at all to litigate that case,” Schwartz said. “If we’ve given up the charade that accountability is only through financial payments by those officers, then we need to think more seriously about what the consequences are and what our internal disciplinary systems look like in law enforcement agencies.”

Under the Colorado statute, officers who have acted in “bad faith” can be required by local governments to pay up to $25,000 toward a settlement or judgment. But if they do not have the resources to do so, the city government will pick up the tab. New Mexico’s law requires that the civil lawsuit be brought against the individual’s employer, solidifying that an individual state actor will never be held personally liable for financial judgments or settlements.

Some police officers, who were at first resistant to the New Mexico bill due to preconceived notions about their potential for financial liability, had a change of heart after being informed that it would offer even more protections to officers who can’t be sued under the state system, according to state House Speaker Brian Egolf, who co-sponsored the state’s Civil Rights Act.

“It was really done as a way to address concerns and worry by members of the legislature whose support and votes we needed,” said Egolf. “It didn’t diminish citizens’ rights to defend their constitutional rights in the court. One of the goals is to make it easier for New Mexicans to access justice and put them on a shorter path to their day in court.”