Lawfare: Hold Police Accountable by Changing Public Tort Law, Not Just Qualified Immunity by Paul Stern:
Politicians, scholars and jurists on both sides of the aisle have pointed to the elimination of qualified immunity as a means to ensure greater law enforcement accountability in the wake of George Floyd’s tragic death. Congressional Democrats recently introduced the Justice in Policing Act of 2020, which aims to establish a national standard for policing and combat racial bias in policing—by, among other things, doing away with qualified immunity. Organizations along the political spectrum, including the American Civil Liberties Union and the Cato Institute, have joined in the call to eliminate the doctrine. Justice Clarence Thomas recently dissented from the denial of certiorari in a case involving qualified immunity, raising his “strong doubts” about the doctrine as it relates to actions brought against officers acting under the color of state law.
The judicially created doctrine was conceived as a means of striking the proper balance between permitting compensation for the conduct of officials acting with ill motives, while not punishing those officers who, in good faith, did not know that their conduct would violate the constitutional rights of the plaintiff. Part of that analysis required a subjective assessment of whether the official acted with permissive intent. The Supreme Court later found the subjective element of the good-faith defense incompatible with its concern that well-intentioned officers often had to endure the stresses and burdens of a fact-intensive investigation, extensive discovery and a trial. Casting aside the subjective standard, the Supreme Court devised an objective test, which asked whether the officer’s conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”