This article was provided by the distinguished jurist John H, Wilson (ret.)
It is no secret that crime in New York City has risen at an alarming rate, in a short period of time. As reported by the New York Post, “(t)he number of shootings soared 97% from 777 in 2019 to 1,531 in 2020 and murders jumped by 44% from 319 to 462, according to the NYPD…(b)urglaries also shot up 42% from 10,909 to 15,463 and car thefts soared by 67% from 5,422 to 9,038, officials said.”
New York’s ABC affiliate, Eyewitness News, reports that “(i)n the (first) 11 months of 2020, shootings in New York City…surged to levels unseen in years…(w)hile overall crime overall remains flat, the number of shootings increased again in November, this time by 112%…Police say there were 115 shootings (in November of 2020) vs. 51 in November of 2019.”
And just what is the New York City Council doing to control this extreme surge in violent crime? “The New York City Council moved to end qualified immunity for Police Officers…making it the first big city in the nation to do so.”
The legislation, which awaits Mayor Bill DeBlasio’s signature, amends the New York City Administrative Code to repeat the protections against unreasonable searches and seizures enshrined in the 4th Amendment to the United States Constitution. There is also the addition of the right to bring a civil action; “A person aggrieved may make a claim…in any court of competent jurisdiction by filing a complaint setting forth facts pertaining to the deprivation of any right created, granted or protected by (this section) and requesting such relief as such person aggrieved considers necessary to insure the full enjoyment of such right.”
These restatements of already existing rights would be of little concern, but for the addition of this provision; “It is not a defense to liability pursuant to this chapter that a covered individual has qualified immunity or any other substantially equivalent immunity.”
What exactly is qualified immunity, and why is its abolition as a defense a problem for law enforcement?
According to FBI Academy Instructor Richard Schott, quoting from the US Supreme Court case of Harlow v. Fitzgerald (457 U.S. 800 (1982)), “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Justice Powell, writing for the majority, continued:
“[o]ur decisions have recognized immunity defenses of two kinds. For officials whose special functions or constitutional status requires complete protection from suit, we have recognized the defense of “absolute immunity.” The absolute immunity of legislators, in their legislative functions, and of judges, in their judicial functions, now is well settled. Our decisions also have extended absolute immunity to certain officials of the Executive Branch. These include prosecutors and similar officials, executive officers engaged in adjudicative functions, and the President of the United States. For executive officials in general, however, our cases make plain that qualified immunity represents the norm. [W]e [have] acknowledged that high officials require greater protection than those with less complex discretionary responsibilities.”
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“(L)aw enforcement officers are government officials who perform discretionary functions and may be protected by qualified immunity. This shield of immunity is an objective test designed to protect all but ‘the plainly incompetent or those who knowingly violate the law’…officers are not liable for damages ‘as long as their actions reasonably could have been thought consistent with the rights they are alleged to have violated’…qualified immunity is not appropriate if a law enforcement officer violates a clearly established constitutional right.”
According to Attorney Rebecca Pirius, “(j)udges created the qualified immunity shield as a way to balance the competing needs of (1) public officials to perform discretionary duties without the constant fear of being sued and (2) victims to hold public officials accountable for acting in violation of the law…Proponents of the current rule argue it’s needed so public officials can perform their duties without hesitation. And, because lawsuits won against public officials almost always end up being paid for by the government entity, the financial burden of loosening the standard would fall to local and state governments and taxpayers. Opponents argue that the ‘clearly established rights’ standard is so high that victims can only win if they can point to a case with nearly identical facts and circumstances. Given this high bar, critics maintain public officials are not accountable for their actions, and victims effectively have no remedy under the law for violations.”
There is no denying that in certain instances, the application of the qualified immunity doctrine has led to unfair results. In the case of Dukes v. Deaton (852 F.3d 1035 (11th Cir. 2017)), an officer executing a “No-knock” search warrant, tossed a flash-bang grenade through the bedroom window of the residence to be searched, without looking to see whether anyone was present. One of the two occupants of the bedroom was seriously burned by the grenade.
In dismissing the case, the 11th Circuit ruled that “(a)lthough we agree with Dukes that Deaton used excessive force, we also agree with the district court that Deaton is entitled to qualified immunity because it was not clearly established that his conduct violated the Constitution. And he is entitled to official immunity because Dukes offers no proof that Deaton intended to injure Dukes.”
A case like this clearly points to the necessity of reforming the law of qualified immunity. However, rather than look for an approach that would protect both Police Officers trying to do their jobs, and people whose rights have been violated, the New York City Council almost literally throws the baby out with the bathwater. As described by Fox News, “(o)pponents of the bill said it might discourage some from getting into law enforcement. ‘Ending qualified immunity will prevent the best young men and women in our city from joining the police force,’ Councilman Robert F. Holden said as he voted no, according to the New York Times…’New Yorkers are getting shot, and police officers are on the streets day and night, trying to stop the bloodshed,’ Patrick Lynch, president of the Police Benevolent Association, said in a statement, adding that the new bill would ‘chill the operations of law enforcement.’”
It would seem prudent and reasonable, that at a time of increased violent criminal activity, the City of New York would want their police force unfettered by worries of civil liability. Instead, the City Council prefers its law enforcement officers to act with the threat of personal liability for their actions hanging over their every move.
In this environment, who would want to wear the once-proud uniform of the NYPD?
Illustration: Pixabay