The Major Cities Chiefs Association (“MCCA”) is an organization of 79 police chiefs, commissioners, and sheriffs representing the largest cities in the United States and Canada. Last year, I wrote about how the MCCA put out a misleading “Law Enforcement Reform Policy Statement,” which said that the organization “opposes repealing or amending the qualified immunity statute” (even though, of course, there is no qualified immunity statute).

Now, however, the MCCA has changed its tune. Just yesterday, the organization released an extraordinary “Qualified Immunity Reform Policy Statement” that recommends major alterations to the doctrine, while also arguing it shouldn’t be eliminated entirely. The statement characterizes its suggested reforms rather modestly, explaining that “[w]hile the MCCA opposes the elimination of qualified immunity, the MCCA supports reforming the doctrine to better promote transparency and accountability.” But the details of the statement make clear that the MCCA is effectively suggesting no less than the elimination of the central feature of modern qualified immunity—the notorious “clearly established law” standard.

As a threshold matter, I’ll note that while the MCCA statement is much more accurate than many similar statements from the law‐​enforcement lobby, it’s still misleading in one crucial respect—it repeatedly suggests that qualified immunity protects police officers who are reasonably acting in good faith. For example, in the “Background” section, the MCCA states:

While there have been calls for the complete elimination of qualified immunity, the doctrine should provide law enforcement officers who act in an objectively reasonable manner with the protections necessary for them to discharge their duties effectively.

And the first of the MCCA’s “Key Principles” is:

Law enforcement officers must continue to have access to the necessary protections to allow them to do their jobs without fear of retribution for actions that are objectively reasonable and performed in good faith

As I have explained manymanymanymanymany times, qualified immunity is not a good‐​faith defense. Whether or not defendants receive qualified immunity has nothing to do with whether they were actually acting in good faith, or even with whether they intended to violate someone’s rights—all that matters is whether the defendant violated “clearly established law,” which generally means, whether there’s a prior judicial decision in the relevant jurisdiction concerning the same fact pattern.

Now, the MCCA is entirely correct that police officers are and should be protected from liability “for actions that are objectively reasonable and performed in good faith.” But that protection comes from the Fourth Amendment, not from qualified immunity. Indeed, the “objective reasonableness” standard that the MCCA highlights is taken directly from Fourth Amendment case law, which makes clear that when officers act objectively reasonably, they’re not violating anyone’s rights in the first place. Thus, by definition, officers don’t need qualified immunity to protect them from liability in such cases.

Nevertheless, despite this moderate imprecision, it’s clear the MCCA is keenly aware of exactly what is wrong with qualified immunity—the “clearly established law” standard. Under “Current Challenges” the statement says the following (emphasis added):

The MCCA acknowledges that courts’ current interpretation of qualified immunity has made it difficult for plaintiffs to prove their constitutional rights were violated in some cases. In order for a court to find that qualified immunity does not apply, plaintiffs need to demonstrate that their rights were violated and that it was clearly established at the time of the incident that the officer’s actions violated those rights. To prove this, plaintiffs must point to a previous case in the relevant jurisdiction, with a substantially similar set of facts, in which the court determined an officer’s conduct violated an individual’s constitutional rights.

The MCCA then reinforces its opposition to “clearly established law” in its “Qualified Immunity Reform Policy Statement” section, which says:

Plaintiffs should not have to point to a previous case with a substantially similar set of facts to prove their rights were violated.

I can’t tell you how refreshing it is to see the MCCA correctly recognize that “clearly established law” requires a case with functionally identical facts. My only quibble is with the phrase “courts’ current interpretation of qualified immunity,” which seems to suggest that this requirement is something of an aberration or distortion of the doctrine. To the contrary, this is the ordinary functioning of qualified immunity.

Perhaps the most interesting feature of this statement is that the MCCA doesn’t just describe its position in the abstract. It actually goes on to identify four distinct qualified immunity cases that would come out differently under its proposed “reform” to the doctrine—all of which happen to be cases I’ve previously written about and in which Cato filed amicus briefs. They are:

  • Baxter v. Bracey. This is the case where the Sixth Circuit granted immunity to two officers who deployed a police dog against a suspect who had surrendered and was sitting on the ground with his hands up. A prior case had already found unlawful the use of a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent factual similarity, the court still held that the law was not “clearly established,” because the suspect in the prior case was laying on the ground, whereas Baxter was sitting on the ground with his hands up.
  • Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to the ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The court held that the law was not “clearly established” because there was no prior case specifically holding that an officer was not permitted to use a “takedown maneuver” on “a suspect who ignored an officer’s command and walked away.”
  • Corbitt v. VickersThis is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The court held that the law was not “clearly established” because there was no prior case law involving the “unique facts of this case,” in which a child was accidentally shot while the officer was intending to shoot someone (or something) else.
  • Frasier v. Evans. This is the recent case in which the Tenth Circuit granted immunity to several officers who harassed, threatened to arrest, and conducted an illegal search of Levi Frasier, all because Frasier had been recording them making a drug arrest. These officers had actual knowledge they were violating Frasier’s rights, because they had, for years, received explicit training that citizens have a First Amendment right to record the police in public. But they still received immunity, because even though four circuits had already held that such conduct was unconstitutional, this particular right was not yet “clearly established” in the Tenth Circuit, where this violation occurred.

The MCCA modestly describes its proposed standard as denying qualified immunity “where an officer has fair notice that their conduct violates a constitutional right or the officer’s conduct was not objectively reasonable.” But if BaxterKelsayCorbitt, and Frasier all come out differently under this standard, then this reform is no modest tinkering; it is a fundamental reshaping of what qualified immunity actually is.

On the whole, the MCCA’s fundamental concern seems to be that officers who are acting in good faith and reasonably pursuing lawful objectives should not be civilly liable. I wholeheartedly agree. But as I described above, the hallmark of the Fourth Amendment itself is “reasonableness,” which means that actual good‐​faith mistakes of judgment don’t violate anyone’s rights to begin with, making qualified immunity irrelevant.

So what’s left then? If the MCCA wants to reform, but not eliminate qualified immunity, what’s the zone where they think police officers should still be immune from personal liability, even if they do violate people’s rights? The statement doesn’t give a clear answer, but one possibility would be the sort of “good‐​faith safe harbors” that were included in Senator Mike Braun’s reform bill from last year, and which I discussed at the end of this post. Congress could excise the “clearly established law” standard, create shared liability between officers and departments, but clarify also that officers can’t be individually liable if they were reasonably relying on state law, judicial precedent, or department policy.

In sum, though we can debate the exact details, the MCCA’s statement makes plain that there are “compromise” approaches to qualified immunity that accord with reasonable concerns from police organizations, but that still meaningfully address the most fundamental problems with the doctrine. If even the law‐​enforcement lobby can get on board with such an approach, there’s no reason Congress can’t as well.

Commentary by Jay Schweikert. Originally published at Cato At Liberty. https://www.cato.org/blog/major-police-organization-comes-out-support-qualified-immunity-reform

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