Speaker 1: This is Bloomberg Law with June Grasso. This is case
Speaker 1: number twenty CPE one Night to Fortnight for State versus
Speaker 1: Gareth David rolf As. Another police officer has charged in
Speaker 1: the killing of a black man, this time in Atlanta.
Speaker 1: The country is struggling with the issue of police accountability,
Speaker 1: and a once obscure legal doctrine that shields police and
Speaker 1: civil suits has come under attack. Here's Democratic Senator Corey Booker.
Speaker 1: We have to ask ourselves as a society, do we
Speaker 1: want to have a nation where police officers do really
Speaker 1: awful things cannot be held accountable. Uh. Two civil rights
Speaker 1: charges and that's unacceptable. But the Supreme Court rejected several
Speaker 1: cases challenging the doctrine of qualified immunity. Joining me as
Speaker 1: Michael Dorf, a professor at Cornell Law School, qualified immunity
Speaker 1: is not an issue at this point in the current
Speaker 1: cases involving police. So why has it become so much
Speaker 1: of an issue that even four hundred professional athlete some
Speaker 1: coaches wrote a letter asking Congress to get rid of it. Well, so,
Speaker 1: I think police misconduct in many contact is being questioned,
Speaker 1: and it's true that a deliberate police killing of an innocent,
Speaker 1: unarmed civilian would not entitle the officer to qualified immunity
Speaker 1: in a civil lawsuit. Indeed, the person could be criminally liable,
Speaker 1: as you mentioned, But people are looking at a range
Speaker 1: of abuses by police, and that includes all sorts of
Speaker 1: things like stopping frisk, policies like excessive force, and in
Speaker 1: many of those cases that are somewhat less egregious, officers
Speaker 1: now are immune from civil liability even if they violate
Speaker 1: somebody's civil rights so long as it was not clearly
Speaker 1: established at the time of the conduct that they were
Speaker 1: violating civil rights. And so many people now with heightened
Speaker 1: awareness of police misconducts, think that qualified immunity is another
Speaker 1: potential target for reforms. Would you just explain what the
Speaker 1: line is for qualified immunity. So the statute forbids violations
Speaker 1: of civil rights, but an officer will only be held
Speaker 1: liable for violating civil rights if, in addition to violating
Speaker 1: the rights, it's also true that a reasonable officer would
Speaker 1: have been unnoticed that what he was doing was a violation,
Speaker 1: and that means it needs to be quote clearly established
Speaker 1: that the conduct in which the officer engaged violated civil rights.
Speaker 1: The way in which the law clearly establishes that particular
Speaker 1: conduct violated civil rights is with prior adjudications, meaning precedents
Speaker 1: from other cases, And the Supreme Court has said that
Speaker 1: the president in the prior case has to be very
Speaker 1: similar to the current case. It is not enough that
Speaker 1: in a previous case the Court said excessive force in
Speaker 1: the arrest of a motorist is a violation of civil rights.
Speaker 1: It has to be excessive force that looks like the
Speaker 1: excessive force used in this particular case. Many lawyers, academics,
Speaker 1: and even judges have criticized the doctrine for years. Is
Speaker 1: it because it's been interpreted to require this precise match
Speaker 1: to conduct in a prior case? In other words, has
Speaker 1: the interpretation of it become too rigorous? Yes? So, I
Speaker 1: think there are two main objections to qualify immunity. One
Speaker 1: is that some justices and scholars criticized the very concept
Speaker 1: of qualified immunity. They argue that the Civil Rights Statute,
Speaker 1: which was passed during reconstruction, does not contain a defense
Speaker 1: of qualified immunity, and it's illegitimate for the courts to
Speaker 1: read one in where it wasn't put there by Congress.
Speaker 1: But there's a second and somewhat narrower criticism of qualified immunity,
Speaker 1: which is exactly the one to which you've pointed, namely,
Speaker 1: that the courts are giving officers qualified immunity too broadly
Speaker 1: because they require that to show that the officer should
Speaker 1: have known what he was doing was unreasonable, that there
Speaker 1: has been an exact case just like this one, and
Speaker 1: that that does seem to be a problem in the
Speaker 1: interpretation of qualified immunity rather than a problem with qualified
Speaker 1: immunity itself. So is that problem due to the Supreme
Speaker 1: Court's interpretation of the doctrine they created over the years?
Speaker 1: Have they held the victims to such a high bar? Yes?
Speaker 1: I think so. The original doctor of qualified immunity used
Speaker 1: a subjective good state standard. At some point after the
Speaker 1: Nixon administration, the Court, in a case called Harlowe against
Speaker 1: the Scald that changed that to an objective standard. The
Speaker 1: question is what would a reasonable officer do in these circumstances,
Speaker 1: rather than what did this particular officer intent? And I
Speaker 1: don't think there's anything inherently problematic with an objective reasonable
Speaker 1: officer test. It's just that, over the years, in case
Speaker 1: after case, the Court seemed to think that more and
Speaker 1: more officers were reasonable because they said that you had
Speaker 1: to have a prior case almost exactly like the current
Speaker 1: one in order to be unnoticed. So what you were
Speaker 1: doing was unlawful. So yes, I do think it is
Speaker 1: the Supreme Court that, in various cases gave broader and
Speaker 1: broader immunity. The Supreme Court rejected eight cases involving qualified
Speaker 1: immunity with only one dissent from Clarence Thomas. Wouldn't this
Speaker 1: be the time for the Court to take up this
Speaker 1: issue when it's under attack. Well, I don't think necessarily.
Speaker 1: It's a surprise, that is to say, the Court doesn't
Speaker 1: give reasons for rejecting excretionary reviewing particular cases. It's true
Speaker 1: to Justice Thomas in one of these cases and in
Speaker 1: some previous cases, has expressed the view that he would
Speaker 1: like to re examine qualified immunity, but none of the
Speaker 1: other justices has strongly indicated that preference. And I think
Speaker 1: you also understand that judicial elimination of qualified immunity would
Speaker 1: not necessarily be such a victory for civil rights plaintiffs.
Speaker 1: It would depend on what goes with it. One of
Speaker 1: the things that Justice Thomas said in his descent is
Speaker 1: that he would also like to re examine case called
Speaker 1: Monroe against Tapes that allows lawsuits against government, and maybe
Speaker 1: he wants to get rid of that too when he
Speaker 1: gets rid of qualified immunity, so he would be giving
Speaker 1: with one hand but taking away with the other. Potentially,
Speaker 1: What about Justice Sonia Sotomayor. Hasn't she in the past
Speaker 1: called it an absolute shield for law enforcement officers? Did
Speaker 1: you expect that she might write some kind of a descent, Yes,
Speaker 1: So I think that that that that's a different sort
Speaker 1: of critique by Justice Thomas is the first critique. He
Speaker 1: thinks that the Court was acting illegitimately in creating this
Speaker 1: defense at all, certainly one that goes beyond the common
Speaker 1: law and justice set of Mayor is more concerned that
Speaker 1: the policy is enabling abuse. Um, But you don't need
Speaker 1: to re examine the very idea of qualified immunity to
Speaker 1: go where Justice Soto Mayor wants to go. All you
Speaker 1: need to do is in the next case in which
Speaker 1: somebody raises a qualified immunity defense, to cut back on
Speaker 1: it a little bit. And you can do that in
Speaker 1: a case by case basis. I think Justice Soto Mayor
Speaker 1: might be worried that if the court were to go
Speaker 1: down the route that Justice Thomas is suggesting, they might
Speaker 1: also cut back on other doctrines, some of which, as
Speaker 1: I said, favor people whose civil rights may have been violated.
Speaker 1: One example would be the exclusionary rule in criminal prosecutions
Speaker 1: that currently allows somebody who has been the victim of
Speaker 1: an unlawful search to suppress evidence of that search in
Speaker 1: their criminal trial. I wrote on my blog that it
Speaker 1: might be that the price of getting rid of qualified
Speaker 1: immunity would also be to get rid of the exclusionary rule,
Speaker 1: because that is also a judge made rule. And you
Speaker 1: wrote a piece would eliminating qualified immunity substantially deter police misconduct?
Speaker 1: And then there you bring up the point that police
Speaker 1: officers don't have to pay for the damages out of pocket.
Speaker 1: They're reimbursed for them by the city the state is so,
Speaker 1: is this really a deterrent for police officers? Right? Uh? Well,
Speaker 1: there is a little bit of stigma that goes with
Speaker 1: being found to have violated somebody's civil rights, and so
Speaker 1: getting rid of qualified immunity would potentially have uh an
Speaker 1: impact that way. But if we think that the main
Speaker 1: role is being played by the fear of money damages.
Speaker 1: Then indemnification mostly by municipal police force forces and really
Speaker 1: ultimately the taxpayers, means that you're not having that much
Speaker 1: of a de turn effect. And so you would continue
Speaker 1: not to have so much of a de turn effect
Speaker 1: if you got rid of qualified immunity. Now, one thing
Speaker 1: you would see potentially greater liability for local government, and
Speaker 1: that might give the local government greater incentive to supervise
Speaker 1: and to train and discipline their officers uh to a
Speaker 1: greater extent than they currently do. So there's a there's
Speaker 1: a possible upside um. You know. One way to address
Speaker 1: this issue that I've raised is you could make indemnification
Speaker 1: illegal and I would just say we're not going to
Speaker 1: enforce indemnification contracts if an officer is found to have
Speaker 1: violated civil rights um. And so that's that's another possibility.
Speaker 1: I don't know that it's being proposed in some of
Speaker 1: the pending bills that would either eliminate or cut back
Speaker 1: unqualified immunity. There's a lot of movement now in the
Speaker 1: Democrats Justice and Policing Act, they would end qualified immunity.
Speaker 1: Congressman Justin Amash has a bill that would end qualified immunity,
Speaker 1: but often sort of like when there are gun violence
Speaker 1: cases and then there's an uproar and a call to
Speaker 1: change gun laws doesn't happen when it peters out. How
Speaker 1: likely is it, in your view that Congress will actually
Speaker 1: eliminate qualified immunity. I think it's not very likely in
Speaker 1: the current Congress, because you would need to get it
Speaker 1: through the Senate as well as the House, and of
Speaker 1: course the Senate is controlled by Republicans now, although in
Speaker 1: the current political moment it looks like there are a
Speaker 1: great many possibilities. I'm not an expert in sort of
Speaker 1: legislative politics, but I think that the best chance of
Speaker 1: getting a bill through in the current Congress, that is
Speaker 1: to say, before the next Congress and potentially a different president,
Speaker 1: that the best chance would be as part of a
Speaker 1: larger package of congressional reforms. I think a upper down
Speaker 1: vote on getting rid of qualified immunity probably would not
Speaker 1: get past the filibuster in the Senate and maybe wouldn't
Speaker 1: be signed by President Trump. But if you package it
Speaker 1: was something else that was sort of a compromise bill
Speaker 1: and could make it through both houses of Congress, it
Speaker 1: it might be possible. Could the Supreme Court be waiting
Speaker 1: to see if Congress acts, and if Congress doesn't act,
Speaker 1: perhaps he'll decide to take it up next term. Yeah,
Speaker 1: that's the possibility. Um Qualified immunity is a judge made doctrine,
Speaker 1: but it's not a constitutional requirements. They're doing it as
Speaker 1: a matter of a combination of statutory interpretation and what's
Speaker 1: sometimes called common law. That is to say, they have
Speaker 1: the power to recognize defenses. Uh. So Congress could overrule
Speaker 1: them on either ground in the same way that Congress
Speaker 1: can change an existing statute. Uh. And so one reason
Speaker 1: sometimes for the Court to wait is to see if
Speaker 1: Congress is going to make the change. Thanks Michael. That's
Speaker 1: Michael Dorff, a professor at Cornell Law School. I'm June
Speaker 1: Grosso and this is Stilber