Catastrophic is the appropriate term to describe the threat facing the safety of our communities related to efforts to deny law enforcement officers the safety net provided by qualified immunity. As stated in part, “… 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” (Harlow v. Fitzgerald  457 U.S. 800, at 818). Although the thrust of this article is qualified immunity, there are several interrelated topics that are essential to the discussion, including laws, incarceration, actions of public officials, litigation and unique behaviors of legal representation.
While citizens universally desire that peace officers do the things they need to do to keep us all safe and reduce crime and criminal behavior in our communities, that is where agreement often ends! The issues of appropriate force, reasonable tactics, appropriate equipment and investigative techniques are among the topics for which there is often disagreement.
We need to strengthen our law enforcement agencies and not engage in acts or legislation that further hinders their abilities to keep our communities safe.
It is wise for all of us to be reminded of what every peace officer knows and experiences on a daily basis: There are some very bad and dangerous people who are in our communities. Notwithstanding the reality that the overwhelming percentage of citizens are law-abiding, the small percentage of those bad and dangerous criminals are the folks with whom our officers must devote a disproportionate percentage of time and effort and for whom the average citizens often do not recognize the danger of their presence. Most serious criminals try hard to conceal their crimes and their identity; seek to avoid detection and capture; resort to force to prevent being captured; flee on foot or in vehicles if able; use every legal loophole to avoid the consequences of their crimes and criminal behaviors; and will insert race or gender or ethnicity or orientation (all that might fit) as a component in their defense. Although criminals are a minority, they can constitute a majority of people with whom officers interact. For officers to have a reasonable chance to keep our communities safe, officers must be able to use a full range of tools and tactics to do just that!
While I was going to use the word unfortunate, I believe tragic may be a more accurate way to describe the overall subtle erosion of appropriate aggressiveness, initiative, confidence and tenacity. The persistent chorus — in some arenas — for the elimination of peace officer qualified immunity has inhibited many of our law enforcement personnel from doing their job in a proactive manner. We, as citizens, regardless of political considerations, need officers who are appropriately tenacious and use every legal means at their disposal to keep our neighborhoods safe. The removal of qualified immunity would remove nearly every incentive for police officers to engage in proactive policing, with our communities being the biggest losers of all.
National crime and arrest statistics are pertinent to this discussion. In our major cities throughout the nation, crime is up, and arrests are down! Look closely and critically at what is happening in New York City, Los Angeles, Dallas, Seattle, Portland, San Francisco and elsewhere. We need to strengthen our law enforcement agencies and not engage in acts or legislation that further hinders their abilities to keep our communities safe.
To be blunt, the unfair and inaccurate characterization of rare uses of force as typical occurrences, including the sickening impromptu legal maneuvering described as “press conferences,” has taken a terrible toll on the psyche of many officers. Officers are afraid to exercise appropriate aggressiveness and inquisitiveness for fear of losing their jobs and possibly their freedom. Much like national security, freedom is not free. It comes at a price that includes the occasional need for the use of force by our peace officers. The political, legal and social posturing by those who describe rare tragic law enforcement events as common occurrences has weakened the safety of our communities.
Let us examine the motives of people who advocate for the elimination of qualified immunity for peace officers, which will necessarily involve the closely intertwined issue of incarceration. First, there are law-abiding citizens who are well-intended but see the world as we all wish it could be, and who are unaware of the dangerous nature of criminals in our society. Into the second category, I would place those law-abiding citizens who believe in rehabilitation and support every reasonable strategy to get people out of jail and into programs that will make them better and make our society an even better place, but who may be so passionate about step one in reducing incarceration as to ignore step two. We need to strengthen our law enforcement agencies and not engage in acts or legislation that further hinders their abilities to keep our communities safe — the deployment of those rehabilitation and re-entry programs that have yet to be realistically developed. Into the third category are those elected and appointed officials who are “playing” to their most vocal constituencies by publicly advocating for positions intended more for re-election than the overall public good. Finally, there are a few (fortunately) criminal defense attorneys who have crossed a line by rationalizing that a vigorous defense includes whatever mistruth or distortion they can employ to remove barriers to successful prosecution, including financial implications.
The law enforcement community has been inappropriately targeted, and its officers have been unfairly victimized by the forces that aggressively and strategically strive for less or no incarceration. Some of these forces describe the situation as a “humanitarian crisis,” arguing that less or no incarceration are appropriate measures to redress the historical wrongs that some perceive to be rooted in racism and prejudice. As the most conspicuous element of our justice system, the law enforcement community often experiences the brunt of incarceration-related criticism. Unfortunately, our officers are an easy and visible target of the barrage of this misdirected and exaggerated strategy.
Disagreement with various laws is often at the core of justice system-related controversies. Legislators and other elected individuals who cater to special interests in this regard are encouraged to walk their legislative halls, look at the pictures on the walls and be reminded that laws stem from legislators; not peace officers. It is wise to be reminded of the paraphrased remarks of former Supreme Court Justice Thurgood Marshall, who, when asked many years ago by a southern peace officer what the police should do when confronted with the violation of a bad law, responded: “If the law is bad, we the judiciary will deal with that. But if a police officer fails to follow the law, we will deal with him!”
Depriving the officers who keep our communities safe of the shield of qualified immunity because of rare missteps of a very few is analogous to throwing out the entire batch of apples because of a single one that is spoiled. As in just about every endeavor, when a problem arises, we must deal with it in a manner that gets the job done surgically without weakening the overall structure or organization.
Nobody dislikes a bad cop any more than a good cop! Good cops have no sympathy for those who inappropriately use force or violate their sacred oath. There is no shortage of both administrative and legal remedies for those with a badge who violate the public trust, nor is there a reluctance among law enforcement executives to promptly rid the profession of rogue officers who tarnish
Those who advocate for the elimination of qualified immunity have been relentless in their efforts, and those of us who recognize how essential it is for the safety of our communities need to be no less so. Educating our elected and appointed officials, community leaders and the public in support of the retention of this essential tool and identifying the catastrophic consequences of its loss is a responsibility that all of us need to take very seriously.
Qualified immunity for law enforcement officers is essential to public safety, and its loss would truly be catastrophic for our communities. Educating others about this reality is a critical task to be taken seriously and orchestrated widely.
As seen in the May 2023 issue of American Police Beat magazine.
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