On Qualified Immunity by The Rev. Josh Pawelek

I spent virtually all of Friday, July 17th, 2020 listening via Zoom to public testimony as members of the Connecticut General Assembly’s Joint Committee on the Judiciary considered LCO 3471, “An Act Concerning Police Accountability.” If this act becomes law, it will make Connecticut a national leader in the movement to reform policing in response to the Black Lives Matter movement and other efforts to end police violence against Black and Brown communities. I tuned in when the hearing began at 10:00 AM. I testified support of the bill around 8:45 PM, and then listened for another 45 minutes or so.

One of the most controversial components of LCO 3471 is the removal of qualified immunity for police officers. I’m not a lawyer and I don’t claim to fully understand how qualified immunity works. I’ve done some research and, well, it’s complicated. But I do understand that qualified immunity has enabled many police officers to avoid lawsuits when they’ve violated the civil rights of citizens.

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All day long I heard people testify either about their direct experience of abuses by police, or about data that illustrates racist patterns in policing throughout Connecticut and the United States. I also heard stories about officers who had committed egregious civil rights violations against citizens, but were able to rely on qualified immunity and other built-in protections to avoid accountability for their actions. And all day long I also heard police officers testify about the need to maintain qualified immunity. They argued it would be catastrophic to law enforcement if qualified immunity were to go away. Good officers would leave the ranks. Officer shortages would lead to rampant crime. There were many doomsday scenarios.

I confess: there’s a part of me that feels deeply for officers who are facing the loss of a protection that they believe helps them perform well in a very difficult and, at times, dangerous job. But I can’t give into that feeling. This seems obvious, but I think it needs to be said: If there’s no way to hold police officers and, by extension, police departments, accountable for the racist outcomes of policing, then there’s really no way to dismantle racism in policing

All day long on July 17th, there was a significant and palpable silence on the part of officers as well. We’re in the middle of a national reckoning with our country’s white supremacist history and its ongoing legacies of racism, especially in relation to policing. The immediate catalyst for this reckoning was the police murder of George Floyd in Minneapolis on May 29th. But that murder was just the graphically visible tip of a massive iceberg. The evidence for the reality of racism in the criminal justice system is incontrovertible. It’s in the data on traffic stops, arrest rates, sentencing, incarceration rates. Racism is as real in policing as it is in any other institutThe silence: all day long on July 17th, not once – NOT ONCE – did I hear any police officer who testified against LCO 3471 even come close to acknowledging the patterns that the data reveal and that everyone else sees. Not once did I hear any police officer who warned of catastrophe acknowledge the law enforcement abuses that Black and Brown people report on a daily basis. Even when Black legislators spoke about being racially profiled in their cars with their legislator plates plainly visible, not one police officer had either the compassion or the integrity to say, “I’m sorry that happened.” Not one police officer who testified against this bill demonstrated an learning consciousness with words like, “I see what you mean.” Not one police officer who argued for maintaining qualified immunity had the capacity to acknowledge what the whole country sees: outcomes of the entire criminal justice system in the United States of America are racist. That is, as much as policing may help people of color at times, it also hurts people of color regularly. Just for once, as the images of police violence against people of color bombard our social media feeds and newspaper headlines, it would be helpful if someone—anyone—with any bit of power within a law enforcement agency anywhere, could actually admit this truth, could actually acknowledge what everybody else sees. The silence last Friday was profound.
To be fair, some officers did address racism and bigotry. They told the rest of us we are mistaken if we think they are racist. They said they don’t base policing decisions on skin color. They said they’ve never engaged in racial profiling and they don’t have any colleagues who have either. They said they treat all people equally and take great pride in that. They said their fathers who were police officers did the same. But that got me thinking. If it’s true that, unlike the rest of society—unlike me—police officers are able to conduct themselves above the realities of racism, then why is qualified immunity necessary?

I’m asking in all seriousness, because I really don’t get it. What I gathered from police testimony last Friday, is that qualified immunity is necessary to protect officers from being falsely accused of civil rights violations. Understandably, officers don’t want to carry the burden of paying court costs for defending themselves against frivolous lawsuits, and the existence of qualified immunity clearly deters frivolous lawsuits. But is that really it? Protection from false allegations? If so, there’s a very slippery slope here. The assertion that police are not racist, along with qualified immunity, translates into message that virtually any lawsuit in response to police use of excessive force, police violence, police brutality, especially in communities of color, is essentially frivolous unless a court decides not to accept qualified immunity as a defense

Maybe that’s how the conversation sounds behind closed doors. “These people don’t understand why we do what we do. They don’t understand how we risk our lives every day—for them. They don’t understand that we have to make split-second decisions. They’re always complaining about racism. Frivolous. Thank God for qualified immunity.” Maybe that’s how it goes. I don’t know. But another possibility for how the conversation sounds among police officers is the opposite. Perhaps they look at the data like everyone else, and perhaps they watch the same gruesome videos of police violence against unarmed people of color like everybody else, and they know racism in policing is real. Perhaps they really do listen to the stories of people of color who’ve had horrendous experiences with police and they know racism in policing is real. And perhaps that’s why qualified immunity is felt to be so necessary – the recognition that all too often police officers do cross a moral—and legal—and Constitutional—line in the conduct of their jobs, and they need protection from the legal consequences of crossing. No police officer said that at last Friday’s hearing. But it seemed to be lurking just below the surface.

Either way, whether police think complaints about racism are all frivolous, or they think the complaints have some merit and are therefore all too willing to cling to qualified immunity, the national call for extensive reform is not going away. We’ve reached a tipping point. Change is coming. It would be so refreshing, not to mention helpful, if police officers could more publically acknowledge and affirm the experiences Black and Brown communities report in response to policing practices. I know that will sound incredibly naïve to some, but I don’t think it is. I spent years as an antiracism educator and organizer inside my own denomination, the Unitarian Universalist Association. For years, denominational leaders—mostly white, but some people of color too—balked at publically naming our own racism, our own white supremacy culture. For years it seemed as if our comfortable, largely white denomination would just continue on its way, paying lip-service here, dedicating some funding there, but never really wrestling with the racism in our history, never really reckoning with the fact that people of color within our faith were being harmed in a variety of ways, and that people of color beyond our faith had no interest in converting. The call for change has always been present, and as a denomination we are getting better and better about recognizing the harm, recognizing the patterns, recognizing that our culture needs to change. We’re getting better and better at owning our own racism, and at making the necessary institutional changes in response. It’s long-term work. It’s hard work. I am proud of our denomination for the steps we are taki

Police departments can take those steps too. If I weren’t working for antiracist change in my own denomination and in the church where I serve as a minister, it would be disingenuous to suggest that police departments ought to be more open to recognizing their own racism and white supremacy culture. But I am doing that work. And while a church isn’t the same thing as a police department, racism is racism. And I know from experience that conditions improve when people are willing to take racism seriously, when they’re willing to admit that it really is happening, when they’re willing to change the structures that hold racism in pl.

Most people don’t have any understanding of qualified immunity. I didn’t know anything about it until I read section 41 of LCO 3471 and listened to nearly 12 hours of testimony on it. But whether they know about this protective legal structure or not, Black and Brown communities know that police can commit brutal acts that violate civil rights with impunity because far too often they aren’t held accountable. One doesn’t have to know how it works in order to know that it works. That lack of accountability generates enormous mistrust of police. And in my view, that’s what makes policing dangerous for police. It’s not the threat of frivolous lawsuits, but the fact that so many people don’t trust police to serve and protect. All through the hearing I kept wondering: Do police really not see the racist outcomes of their work? Do they really not see how policing negatively impacts communities of color? Do they really not see the underlying distrust, the cynicism, the pain, the fear, the stress, the disenchantment? Do they really want to keep being part of that? Why would anyone, let alone a professional law enforcement officer who supposedly takes great pride in their work, want to be part of tha

Qualified immunity prevents law enforcement agencies from having to fully reckon with their own racism. But the days of denial are ending. More and more people are speaking out. More and more people are marching. And in particular, more and more white people are acknowledging what Black and Brown people have been saying about their experience of policing for centuries. Elected officials are taking note. LCO 3471 is just the beginning. Some municipalities are already taking steps towards defunding police departments—at least at a symbolic level. But so far, in this moment, change is happening without the participation of police. What I heard last Friday was essentially police resistance to change. It would be better for everyone if the police were participating in the change. But in order for that to happen, they’re going to have to finally acknowledge the racism that everyone else sees. Racism in policing is as real as it is in every other American institution

Footnote: I’ve found helpful explanations of qualified immunity at https://www.fletc.gov/sites/default/files/PartIXQualifiedImmunity.pdf and https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform and https://www.law.cornell.edu/wex/qualified_immunity

Footnote: Here’s the relevant language from Section 41 of LCO 3471:
Subsection (b): “No police officer, acting alone or in conspiracy with another, or any other individual acting under color of state law, shall deprive any person or class of persons of the equal protection of the laws of this state, or of the equal privileges and immunities under the laws of this state, including, without limitation, the protections, privileges and immunities guaranteed under article first of the Constitution of the state.

Subsection (c): Any person aggrieved by a violation of subsection (b) of this section may bring a civil action, triable by jury, in the Superior Court for damages against a police officer who committed the violation and against the law enforcement unit employing such police officer at the time of the violation. In any civil action brought under this section in which the plaintiff prevails, the plaintiff may be awarded costs and reasonable attorney’s fees. In any civil action brought under this section, if the court finds that a violation of subsection (b) of this section was deliberate, willful or committed with reckless indifference, the court may award punitive damages.

Subsection (d): Neither governmental immunity nor qualified immunity shall be a defense to a violation of subsection (b) of this section.