WEBVTT - Qualified Immunity Now a Question for Congress

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<v Speaker 1>This is Bloomberg Law with June Grasso. This is case

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<v Speaker 1>number twenty CPE one Night to Fortnight for State versus

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<v Speaker 1>Gareth David rolf As. Another police officer has charged in

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<v Speaker 1>the killing of a black man, this time in Atlanta.

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<v Speaker 1>The country is struggling with the issue of police accountability,

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<v Speaker 1>and a once obscure legal doctrine that shields police and

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<v Speaker 1>civil suits has come under attack. Here's Democratic Senator Corey Booker.

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<v Speaker 1>We have to ask ourselves as a society, do we

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<v Speaker 1>want to have a nation where police officers do really

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<v Speaker 1>awful things cannot be held accountable. Uh. Two civil rights

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<v Speaker 1>charges and that's unacceptable. But the Supreme Court rejected several

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<v Speaker 1>cases challenging the doctrine of qualified immunity. Joining me as

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<v Speaker 1>Michael Dorf, a professor at Cornell Law School, qualified immunity

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<v Speaker 1>is not an issue at this point in the current

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<v Speaker 1>cases involving police. So why has it become so much

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<v Speaker 1>of an issue that even four hundred professional athlete some

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<v Speaker 1>coaches wrote a letter asking Congress to get rid of it. Well, so,

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<v Speaker 1>I think police misconduct in many contact is being questioned,

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<v Speaker 1>and it's true that a deliberate police killing of an innocent,

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<v Speaker 1>unarmed civilian would not entitle the officer to qualified immunity

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<v Speaker 1>in a civil lawsuit. Indeed, the person could be criminally liable,

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<v Speaker 1>as you mentioned, But people are looking at a range

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<v Speaker 1>of abuses by police, and that includes all sorts of

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<v Speaker 1>things like stopping frisk, policies like excessive force, and in

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<v Speaker 1>many of those cases that are somewhat less egregious, officers

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<v Speaker 1>now are immune from civil liability even if they violate

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<v Speaker 1>somebody's civil rights so long as it was not clearly

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<v Speaker 1>established at the time of the conduct that they were

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<v Speaker 1>violating civil rights. And so many people now with heightened

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<v Speaker 1>awareness of police misconducts, think that qualified immunity is another

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<v Speaker 1>potential target for reforms. Would you just explain what the

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<v Speaker 1>line is for qualified immunity. So the statute forbids violations

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<v Speaker 1>of civil rights, but an officer will only be held

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<v Speaker 1>liable for violating civil rights if, in addition to violating

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<v Speaker 1>the rights, it's also true that a reasonable officer would

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<v Speaker 1>have been unnoticed that what he was doing was a violation,

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<v Speaker 1>and that means it needs to be quote clearly established

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<v Speaker 1>that the conduct in which the officer engaged violated civil rights.

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<v Speaker 1>The way in which the law clearly establishes that particular

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<v Speaker 1>conduct violated civil rights is with prior adjudications, meaning precedents

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<v Speaker 1>from other cases, And the Supreme Court has said that

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<v Speaker 1>the president in the prior case has to be very

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<v Speaker 1>similar to the current case. It is not enough that

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<v Speaker 1>in a previous case the Court said excessive force in

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<v Speaker 1>the arrest of a motorist is a violation of civil rights.

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<v Speaker 1>It has to be excessive force that looks like the

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<v Speaker 1>excessive force used in this particular case. Many lawyers, academics,

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<v Speaker 1>and even judges have criticized the doctrine for years. Is

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<v Speaker 1>it because it's been interpreted to require this precise match

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<v Speaker 1>to conduct in a prior case? In other words, has

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<v Speaker 1>the interpretation of it become too rigorous? Yes? So, I

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<v Speaker 1>think there are two main objections to qualify immunity. One

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<v Speaker 1>is that some justices and scholars criticized the very concept

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<v Speaker 1>of qualified immunity. They argue that the Civil Rights Statute,

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<v Speaker 1>which was passed during reconstruction, does not contain a defense

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<v Speaker 1>of qualified immunity, and it's illegitimate for the courts to

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<v Speaker 1>read one in where it wasn't put there by Congress.

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<v Speaker 1>But there's a second and somewhat narrower criticism of qualified immunity,

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<v Speaker 1>which is exactly the one to which you've pointed, namely,

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<v Speaker 1>that the courts are giving officers qualified immunity too broadly

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<v Speaker 1>because they require that to show that the officer should

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<v Speaker 1>have known what he was doing was unreasonable, that there

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<v Speaker 1>has been an exact case just like this one, and

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<v Speaker 1>that that does seem to be a problem in the

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<v Speaker 1>interpretation of qualified immunity rather than a problem with qualified

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<v Speaker 1>immunity itself. So is that problem due to the Supreme

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<v Speaker 1>Court's interpretation of the doctrine they created over the years?

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<v Speaker 1>Have they held the victims to such a high bar? Yes?

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<v Speaker 1>I think so. The original doctor of qualified immunity used

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<v Speaker 1>a subjective good state standard. At some point after the

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<v Speaker 1>Nixon administration, the Court, in a case called Harlowe against

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<v Speaker 1>the Scald that changed that to an objective standard. The

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<v Speaker 1>question is what would a reasonable officer do in these circumstances,

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<v Speaker 1>rather than what did this particular officer intent? And I

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<v Speaker 1>don't think there's anything inherently problematic with an objective reasonable

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<v Speaker 1>officer test. It's just that, over the years, in case

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<v Speaker 1>after case, the Court seemed to think that more and

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<v Speaker 1>more officers were reasonable because they said that you had

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<v Speaker 1>to have a prior case almost exactly like the current

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<v Speaker 1>one in order to be unnoticed. So what you were

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<v Speaker 1>doing was unlawful. So yes, I do think it is

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<v Speaker 1>the Supreme Court that, in various cases gave broader and

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<v Speaker 1>broader immunity. The Supreme Court rejected eight cases involving qualified

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<v Speaker 1>immunity with only one dissent from Clarence Thomas. Wouldn't this

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<v Speaker 1>be the time for the Court to take up this

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<v Speaker 1>issue when it's under attack. Well, I don't think necessarily.

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<v Speaker 1>It's a surprise, that is to say, the Court doesn't

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<v Speaker 1>give reasons for rejecting excretionary reviewing particular cases. It's true

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<v Speaker 1>to Justice Thomas in one of these cases and in

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<v Speaker 1>some previous cases, has expressed the view that he would

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<v Speaker 1>like to re examine qualified immunity, but none of the

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<v Speaker 1>other justices has strongly indicated that preference. And I think

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<v Speaker 1>you also understand that judicial elimination of qualified immunity would

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<v Speaker 1>not necessarily be such a victory for civil rights plaintiffs.

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<v Speaker 1>It would depend on what goes with it. One of

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<v Speaker 1>the things that Justice Thomas said in his descent is

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<v Speaker 1>that he would also like to re examine case called

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<v Speaker 1>Monroe against Tapes that allows lawsuits against government, and maybe

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<v Speaker 1>he wants to get rid of that too when he

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<v Speaker 1>gets rid of qualified immunity, so he would be giving

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<v Speaker 1>with one hand but taking away with the other. Potentially,

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<v Speaker 1>What about Justice Sonia Sotomayor. Hasn't she in the past

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<v Speaker 1>called it an absolute shield for law enforcement officers? Did

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<v Speaker 1>you expect that she might write some kind of a descent, Yes,

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<v Speaker 1>So I think that that that that's a different sort

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<v Speaker 1>of critique by Justice Thomas is the first critique. He

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<v Speaker 1>thinks that the Court was acting illegitimately in creating this

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<v Speaker 1>defense at all, certainly one that goes beyond the common

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<v Speaker 1>law and justice set of Mayor is more concerned that

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<v Speaker 1>the policy is enabling abuse. Um, But you don't need

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<v Speaker 1>to re examine the very idea of qualified immunity to

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<v Speaker 1>go where Justice Soto Mayor wants to go. All you

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<v Speaker 1>need to do is in the next case in which

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<v Speaker 1>somebody raises a qualified immunity defense, to cut back on

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<v Speaker 1>it a little bit. And you can do that in

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<v Speaker 1>a case by case basis. I think Justice Soto Mayor

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<v Speaker 1>might be worried that if the court were to go

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<v Speaker 1>down the route that Justice Thomas is suggesting, they might

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<v Speaker 1>also cut back on other doctrines, some of which, as

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<v Speaker 1>I said, favor people whose civil rights may have been violated.

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<v Speaker 1>One example would be the exclusionary rule in criminal prosecutions

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<v Speaker 1>that currently allows somebody who has been the victim of

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<v Speaker 1>an unlawful search to suppress evidence of that search in

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<v Speaker 1>their criminal trial. I wrote on my blog that it

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<v Speaker 1>might be that the price of getting rid of qualified

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<v Speaker 1>immunity would also be to get rid of the exclusionary rule,

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<v Speaker 1>because that is also a judge made rule. And you

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<v Speaker 1>wrote a piece would eliminating qualified immunity substantially deter police misconduct?

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<v Speaker 1>And then there you bring up the point that police

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<v Speaker 1>officers don't have to pay for the damages out of pocket.

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<v Speaker 1>They're reimbursed for them by the city the state is so,

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<v Speaker 1>is this really a deterrent for police officers? Right? Uh? Well,

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<v Speaker 1>there is a little bit of stigma that goes with

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<v Speaker 1>being found to have violated somebody's civil rights, and so

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<v Speaker 1>getting rid of qualified immunity would potentially have uh an

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<v Speaker 1>impact that way. But if we think that the main

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<v Speaker 1>role is being played by the fear of money damages.

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<v Speaker 1>Then indemnification mostly by municipal police force forces and really

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<v Speaker 1>ultimately the taxpayers, means that you're not having that much

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<v Speaker 1>of a de turn effect. And so you would continue

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<v Speaker 1>not to have so much of a de turn effect

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<v Speaker 1>if you got rid of qualified immunity. Now, one thing

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<v Speaker 1>you would see potentially greater liability for local government, and

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<v Speaker 1>that might give the local government greater incentive to supervise

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<v Speaker 1>and to train and discipline their officers uh to a

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<v Speaker 1>greater extent than they currently do. So there's a there's

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<v Speaker 1>a possible upside um. You know. One way to address

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<v Speaker 1>this issue that I've raised is you could make indemnification

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<v Speaker 1>illegal and I would just say we're not going to

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<v Speaker 1>enforce indemnification contracts if an officer is found to have

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<v Speaker 1>violated civil rights um. And so that's that's another possibility.

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<v Speaker 1>I don't know that it's being proposed in some of

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<v Speaker 1>the pending bills that would either eliminate or cut back

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<v Speaker 1>unqualified immunity. There's a lot of movement now in the

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<v Speaker 1>Democrats Justice and Policing Act, they would end qualified immunity.

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<v Speaker 1>Congressman Justin Amash has a bill that would end qualified immunity,

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<v Speaker 1>but often sort of like when there are gun violence

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<v Speaker 1>cases and then there's an uproar and a call to

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<v Speaker 1>change gun laws doesn't happen when it peters out. How

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<v Speaker 1>likely is it, in your view that Congress will actually

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<v Speaker 1>eliminate qualified immunity. I think it's not very likely in

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<v Speaker 1>the current Congress, because you would need to get it

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<v Speaker 1>through the Senate as well as the House, and of

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<v Speaker 1>course the Senate is controlled by Republicans now, although in

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<v Speaker 1>the current political moment it looks like there are a

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<v Speaker 1>great many possibilities. I'm not an expert in sort of

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<v Speaker 1>legislative politics, but I think that the best chance of

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<v Speaker 1>getting a bill through in the current Congress, that is

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<v Speaker 1>to say, before the next Congress and potentially a different president,

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<v Speaker 1>that the best chance would be as part of a

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<v Speaker 1>larger package of congressional reforms. I think a upper down

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<v Speaker 1>vote on getting rid of qualified immunity probably would not

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<v Speaker 1>get past the filibuster in the Senate and maybe wouldn't

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<v Speaker 1>be signed by President Trump. But if you package it

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<v Speaker 1>was something else that was sort of a compromise bill

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<v Speaker 1>and could make it through both houses of Congress, it

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<v Speaker 1>it might be possible. Could the Supreme Court be waiting

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<v Speaker 1>to see if Congress acts, and if Congress doesn't act,

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<v Speaker 1>perhaps he'll decide to take it up next term. Yeah,

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<v Speaker 1>that's the possibility. Um Qualified immunity is a judge made doctrine,

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<v Speaker 1>but it's not a constitutional requirements. They're doing it as

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<v Speaker 1>a matter of a combination of statutory interpretation and what's

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<v Speaker 1>sometimes called common law. That is to say, they have

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<v Speaker 1>the power to recognize defenses. Uh. So Congress could overrule

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<v Speaker 1>them on either ground in the same way that Congress

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<v Speaker 1>can change an existing statute. Uh. And so one reason

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<v Speaker 1>sometimes for the Court to wait is to see if

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<v Speaker 1>Congress is going to make the change. Thanks Michael. That's

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<v Speaker 1>Michael Dorff, a professor at Cornell Law School. I'm June

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<v Speaker 1>Grosso and this is Stilber