Don’t let Tucker Carlson scare you: reform won’t hurt good cops

By Joanna C Schwartz, Patrick Jaicomo and Anya Bidwell. Excerpt:

"For one thing, qualified immunity does not protect split-second decision making. The Fourth Amendment does that. It provides this important safety net by only prohibiting officers from engaging in “unreasonable” searches and seizures. Under the Constitution, police do not need to behave perfectly. They just need to behave reasonably. Ending qualified immunity will not change that.

Warnings of financial ruin are also overstated. Even when found liable, officers do not typically pay out of their own pockets. As shown in a University of California, Los Angeles study by one of the authors of this column, individual police contributed just 0.02% toward damages entered against them in courts. Local governments paid the rest. Ending qualified immunity will not change these practices either.

Finally, ending qualified immunity won’t doom law enforcement. As Justice Clarence Thomas recently explained in a dissenting opinion, the United States had no special legal doctrines shielding police from accountability for constitutional violations before the Supreme Court created qualified immunity. That means that from 1838, when Boston established the first U.S. police force, until 1967, when the Supreme Court announced its first iteration of qualified immunity, police successfully managed to balance constitutional accountability and effective law enforcement without special defenses or immunities.

For all these reasons, Tucker Carlson and his allies are wrong about qualified immunity.

Other skeptics of current calls to end qualified immunity take the opposite tack, arguing that eliminating the doctrine will do too little to reform policing. Some have pointed to academic research to argue this very point because qualified immunity only results in dismissals in less than 4 percent of filed cases. As the author of the cited study and lawyers who daily litigate civil rights cases, however, we state unequivocally that this argument misrepresents the research and its conclusions.

The reason why so few cases are dismissed through qualified immunity is simple. Courts already have plenty of tools to weed out unsubstantial or frivolous cases. This means that qualified immunity is mostly utilized as an option of last resort, deployed to get rid of cases with strong enough claims to avoid dismissal on other grounds.

If qualified immunity is no longer an obstacle to recovery, cases with strong constitutional claims will actually make it through the courthouse doors, where judges will evaluate them on their merits and those bringing them will finally have a fair shot at receiving a remedy for violations of their constitutional rights.

In addition to allowing the courts to throw out cases with substantial constitutional claims, qualified immunity also undermines police accountability because it increases the costs, burdens, and time necessary to litigate civil rights cases; denies justice to people who have been injured or killed at the hands of police; and sends the message that government officials can violate the law without consequence.

That sort of unaccountability erodes public trust in all police, not just those like George Floyd’s killers

Joanna C. Schwartz is a law professor at the University of California, Los Angeles. Patrick Jaicomo and Anya Bidwell are attorneys at the Institute for Justice. Bidwell is IJ’s Elfie Gallun Fellow in Freedom and the Constitution."