The Virginia Senate last week passed a comprehensive police reform package that would prohibit the use of no-knock warrants and chokeholds in the majority of cases and make it easier for departments to decertify rogue cops. One thing was noticeably absent, though: a ban on qualified immunity.
Qualified immunity makes it exceedingly difficult to sue public officials when they violate your rights, as it requires that any alleged misconduct be outlined almost identically in a previous court precedent. The doctrine has come under fire from all sides of the political spectrum. In June, Rep. Justin Amash (L–Mich.), joined by Rep. Ayanna Pressley (D–Mass.) and several other Democratic members of Congress, introduced a bill in the U.S. House that would have abolished qualified immunity (though it has not received a vote and will likely die without one).
Virginia's House passed a separate bill to end qualified immunity earlier this month, but the legislation met its demise in the state Senate last Thursday. Interestingly, Virginia's governing bodies are both controlled by Democrats, which should in theory make it easy to abolish qualified immunity when considering that many high-profile Democrats and a hefty majority of the American public support ending the doctrine.
But Virginia Democrats' decision to punt on the issue puts them more in line with moderates in the Republican Party—a testament to the power of the law enforcement lobby.
"It's a big problem," said Sen. Scott Surovell (D–Fairfax). "I want to do something about it." But Surovell opposed the recent measure to end qualified immunity, and one need not look far to figure out why. Virginia lawmakers crafting the bill met with police unions "probably six or eight times" and implemented amendments accordingly, said Wayne Huggins, executive director of the Virginia State Police Association, a union representing people in law enforcement, at a press conference last Thursday. "The greatest threat to our profession is the proposed elimination of qualified immunity," added Maggie DeBoard, the first vice president chief of the Virginia Association of Chiefs of Police, another police union. "There is a myth being perpetuated that qualified immunity protects bad cops. It does not, and it has not protected any of the bad cops that I have been a part of firing or separating in my 34 years in the job."
DeBoard might gain new perspective on that if she were to talk to the mother of the 10-year-old boy who was shot in Georgia by sheriff's deputy Matthew Vickers, who received qualified immunity. Or the parents of the 15-year-old boy on his way to school who was shot in Los Angeles by Officer Michael Gutierrez, who received qualified immunity. Or the man who had a police canine sicced on him—after he had surrendered—by two cops who both received qualified immunity. Or the men who allegedly had $225,000 stolen from them by two officers, executing a search warrant, who both received qualified immunity.
The latter case epitomizes the mental contortions required by the legal doctrine. A unanimous panel for the U.S. Court of Appeals for the Ninth Circuit wrote that "although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment." In other words, officers need case law text to tell them stealing is bad.
Advocates like DeBoard present an apocalyptic vision of a world without qualified immunity, one in which officers go bankrupt from frivolous civil suits and leave the force in droves. That's not a vision based in reality. For one, losing qualified immunity is not equivalent to losing a lawsuit. It simply provides someone with the right to bring such a suit in front of a jury—a right the American public is technically still guaranteed under federal law. And in the case that a public servant does lose a suit, the municipality nearly always foots the bill.
Police unions are obligated to repeat talking points about the dangers of scrapping qualified immunity since their job is to stick up for all cops, even when it comes at the expense of the citizens they're supposed to serve. Such was the case with Sgt. Brian Miller, the sheriff's deputy in Broward County, Florida, who hid behind his vehicle for 10 minutes while a gunman ravaged Marjory Stoneman Douglas High School. He was fired in 2017 but by 2020 had regained that position thanks, in part, to his union.
Surovell, who did not respond to Reason's request for comment, tells The Washington Post that although the Senate rejected the qualified immunity bill, the new bill's clarification will make it clear that officers cannot violate certain standards and expect to be protected by qualified immunity. "By making these changes to the Code of Virginia, by clarifying what is legal and what is not legal, we are taking qualified immunity out of the mix," he said. The new legislation does codify limits on force, including prohibiting chokeholds and banning shooting at moving vehicles unless officers believe their lives are at risk.
Still, Surovell will likely be disappointed. The doctrine requires that a constitutional right be "clearly established" in order to hold a public official accountable for violating it, which by today's standard means a near-identical scenario needs to have been previously litigated and condemned by the courts.
Judges have applied that standard to the letter of the law, awarding the legal protection even in cases where they admit that a right was indeed violated. A panel for the U.S. Court of Appeals for the Fifth Circuit, for instance, acknowledged last year that prison guards in Lubbock, Texas, violated Trent Taylor's Eighth Amendment rights when they placed him in two squalid cells. But not all of the smaller details lined up adequately. "Taylor stayed in his extremely dirty cells for only six days," Circuit Judge Jerry E. Smith wrote. "Though the law was clear that prisoners couldn't be housed in cells teeming with human waste for months on end, we hadn't previously held that a time period so short violated the Constitution. That dooms Taylor's claim."
Apply that to the Virginia Democrats' new rules: Chokehold bans are notoriously ineffective and difficult to enforce. Who's to say that any officer couldn't claim he was afraid for his life based on the unique circumstances of the confrontation?
Surovell and his fellow Democrats have a chance to revisit qualified immunity in early 2021. The legislature's solution should center around protecting Virginia's public, not its police unions.