This is Bloomberg Law with June Grasso. This is case number twenty CPE one Night to Fortnight for State versus Gareth David rolf As. Another police officer has charged in the killing of a black man, this time in Atlanta. The country is struggling with the issue of police accountability, and a once obscure legal doctrine that shields police and civil suits has come under attack. Here's Democratic Senator Corey Booker.
We have to ask ourselves as a society, do we want to have a nation where police officers do really awful things cannot be held accountable. Uh. Two civil rights charges and that's unacceptable. But the Supreme Court rejected several cases challenging the doctrine of qualified immunity. Joining me as Michael Dorf, a professor at Cornell Law School, qualified immunity is not an issue at this point in the current
cases involving police. So why has it become so much of an issue that even four hundred professional athlete some coaches wrote a letter asking Congress to get rid of it. Well, so, I think police misconduct in many contact is being questioned, and it's true that a deliberate police killing of an innocent, unarmed civilian would not entitle the officer to qualified immunity
in a civil lawsuit. Indeed, the person could be criminally liable, as you mentioned, But people are looking at a range of abuses by police, and that includes all sorts of things like stopping frisk, policies like excessive force, and in many of those cases that are somewhat less egregious, officers now are immune from civil liability even if they violate somebody's civil rights so long as it was not clearly established at the time of the conduct that they were
violating civil rights. And so many people now with heightened awareness of police misconducts, think that qualified immunity is another potential target for reforms. Would you just explain what the
line is for qualified immunity. So the statute forbids violations of civil rights, but an officer will only be held liable for violating civil rights if, in addition to violating the rights, it's also true that a reasonable officer would have been unnoticed that what he was doing was a violation, and that means it needs to be quote clearly established that the conduct in which the officer engaged violated civil rights.
The way in which the law clearly establishes that particular conduct violated civil rights is with prior adjudications, meaning precedents from other cases, And the Supreme Court has said that the president in the prior case has to be very similar to the current case. It is not enough that in a previous case the Court said excessive force in the arrest of a motorist is a violation of civil rights. It has to be excessive force that looks like the
excessive force used in this particular case. Many lawyers, academics, and even judges have criticized the doctrine for years. Is it because it's been interpreted to require this precise match to conduct in a prior case? In other words, has the interpretation of it become too rigorous? Yes? So, I think there are two main objections to qualify immunity. One is that some justices and scholars criticized the very concept
of qualified immunity. They argue that the Civil Rights Statute, which was passed during reconstruction, does not contain a defense of qualified immunity, and it's illegitimate for the courts to read one in where it wasn't put there by Congress.
But there's a second and somewhat narrower criticism of qualified immunity, which is exactly the one to which you've pointed, namely, that the courts are giving officers qualified immunity too broadly because they require that to show that the officer should have known what he was doing was unreasonable, that there has been an exact case just like this one, and that that does seem to be a problem in the interpretation of qualified immunity rather than a problem with qualified
immunity itself. So is that problem due to the Supreme Court's interpretation of the doctrine they created over the years? Have they held the victims to such a high bar? Yes? I think so. The original doctor of qualified immunity used a subjective good state standard. At some point after the Nixon administration, the Court, in a case called Harlowe against the Scald that changed that to an objective standard. The question is what would a reasonable officer do in these circumstances,
rather than what did this particular officer intent? And I don't think there's anything inherently problematic with an objective reasonable officer test. It's just that, over the years, in case after case, the Court seemed to think that more and more officers were reasonable because they said that you had to have a prior case almost exactly like the current one in order to be unnoticed. So what you were
doing was unlawful. So yes, I do think it is the Supreme Court that, in various cases gave broader and broader immunity. The Supreme Court rejected eight cases involving qualified immunity with only one dissent from Clarence Thomas. Wouldn't this be the time for the Court to take up this issue when it's under attack. Well, I don't think necessarily. It's a surprise, that is to say, the Court doesn't
give reasons for rejecting excretionary reviewing particular cases. It's true to Justice Thomas in one of these cases and in some previous cases, has expressed the view that he would like to re examine qualified immunity, but none of the other justices has strongly indicated that preference. And I think you also understand that judicial elimination of qualified immunity would not necessarily be such a victory for civil rights plaintiffs.
It would depend on what goes with it. One of the things that Justice Thomas said in his descent is that he would also like to re examine case called Monroe against Tapes that allows lawsuits against government, and maybe he wants to get rid of that too when he gets rid of qualified immunity, so he would be giving with one hand but taking away with the other. Potentially, What about Justice Sonia Sotomayor. Hasn't she in the past
called it an absolute shield for law enforcement officers? Did you expect that she might write some kind of a descent, Yes, So I think that that that that's a different sort of critique by Justice Thomas is the first critique. He thinks that the Court was acting illegitimately in creating this defense at all, certainly one that goes beyond the common law and justice set of Mayor is more concerned that
the policy is enabling abuse. Um, But you don't need to re examine the very idea of qualified immunity to go where Justice Soto Mayor wants to go. All you need to do is in the next case in which somebody raises a qualified immunity defense, to cut back on it a little bit. And you can do that in
a case by case basis. I think Justice Soto Mayor might be worried that if the court were to go down the route that Justice Thomas is suggesting, they might also cut back on other doctrines, some of which, as I said, favor people whose civil rights may have been violated. One example would be the exclusionary rule in criminal prosecutions that currently allows somebody who has been the victim of an unlawful search to suppress evidence of that search in
their criminal trial. I wrote on my blog that it might be that the price of getting rid of qualified immunity would also be to get rid of the exclusionary rule, because that is also a judge made rule. And you wrote a piece would eliminating qualified immunity substantially deter police misconduct? And then there you bring up the point that police officers don't have to pay for the damages out of pocket. They're reimbursed for them by the city the state is so,
is this really a deterrent for police officers? Right? Uh? Well, there is a little bit of stigma that goes with being found to have violated somebody's civil rights, and so getting rid of qualified immunity would potentially have uh an impact that way. But if we think that the main role is being played by the fear of money damages. Then indemnification mostly by municipal police force forces and really ultimately the taxpayers, means that you're not having that much
of a de turn effect. And so you would continue not to have so much of a de turn effect if you got rid of qualified immunity. Now, one thing you would see potentially greater liability for local government, and that might give the local government greater incentive to supervise and to train and discipline their officers uh to a greater extent than they currently do. So there's a there's
a possible upside um. You know. One way to address this issue that I've raised is you could make indemnification illegal and I would just say we're not going to enforce indemnification contracts if an officer is found to have violated civil rights um. And so that's that's another possibility. I don't know that it's being proposed in some of the pending bills that would either eliminate or cut back
unqualified immunity. There's a lot of movement now in the Democrats Justice and Policing Act, they would end qualified immunity. Congressman Justin Amash has a bill that would end qualified immunity, but often sort of like when there are gun violence cases and then there's an uproar and a call to change gun laws doesn't happen when it peters out. How likely is it, in your view that Congress will actually
eliminate qualified immunity. I think it's not very likely in the current Congress, because you would need to get it through the Senate as well as the House, and of course the Senate is controlled by Republicans now, although in the current political moment it looks like there are a
great many possibilities. I'm not an expert in sort of legislative politics, but I think that the best chance of getting a bill through in the current Congress, that is to say, before the next Congress and potentially a different president, that the best chance would be as part of a larger package of congressional reforms. I think a upper down vote on getting rid of qualified immunity probably would not get past the filibuster in the Senate and maybe wouldn't
be signed by President Trump. But if you package it was something else that was sort of a compromise bill and could make it through both houses of Congress, it it might be possible. Could the Supreme Court be waiting to see if Congress acts, and if Congress doesn't act, perhaps he'll decide to take it up next term. Yeah, that's the possibility. Um Qualified immunity is a judge made doctrine,
but it's not a constitutional requirements. They're doing it as a matter of a combination of statutory interpretation and what's sometimes called common law. That is to say, they have the power to recognize defenses. Uh. So Congress could overrule them on either ground in the same way that Congress can change an existing statute. Uh. And so one reason sometimes for the Court to wait is to see if Congress is going to make the change. Thanks Michael. That's
Michael Dorff, a professor at Cornell Law School. I'm June Grosso and this is Stilber