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Opinion Limiting police officers’ qualified immunity isn’t the only change needed to achieve real police reform

Sen. Cory Booker (D-N.J.), Sen. Tim Scott (R-S.C.) and Rep. Karen Bass (D-Calif.) after a meeting on policing reform on April 29. (Michael Reynolds/EPA-EFE/REX/Shutterstock)
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One of the sticking points in the debate over police reform is the call to end qualified immunity, which makes it harder for victims of unlawful police conduct to obtain compensation from the officers responsible. Sen. Tim Scott (R-S.C.) has proposed leaving qualified immunity for individual officers as-is and instead holding local governments liable when their officers harm people.

The senator is partly wrong — and partly right. Qualified immunity, an invention of the courts, should be limited so that officers can be held to account, and victims of police misconduct can be compensated. But Scott is correct to put the focus as well on local governments, and to seek to undo another judge-created limit on police accountability — one that is even more pernicious than qualified immunity.

Known as the Monell doctrine, after a 1978 Supreme Court case, this rule shields local governments from liability for legal violations committed by police unless the officer was acting pursuant to an official “policy or custom.”

Private companies are usually automatically responsible for unlawful harm caused by employees. If a truck driver for Bob’s Delivery Service is found at fault for hitting your car, you can recover damages not only from the truck driver but from Bob’s Delivery as well. Under the Monell doctrine, if a police officer uses excessive force against you, you can recover damages only from the officer, not against the department or city — unless you can show a department policy or custom that caused the officer to use excessive force.

The doctrine undermines police accountability and systemic reform. The law holds private companies “vicariously liable” for the acts of employees in order to encourage companies to do everything they reasonably can to prevent their employees from harming people and to ensure that when people are harmed by unlawful conduct, they can be fully compensated.

The Monell doctrine insulates local governments from this powerful incentive to ensure they are doing everything reasonable to prevent police officers from harming people. It also can leave victims of police abuse without adequate compensation for the infringement of rights, loss of employment or even the death of a loved one. Officers may be judgment-proof, or juries may award lower damages against an individual officer than against a municipal defendant, not realizing that officers are nearly always indemnified by the local government they work for.

In addition, exempting police departments from liability for the unlawful acts of their employees disincentives police reform by making it easier for those departments to distance themselves from “bad apple” officers. The officer is held liable, but the city that hired the officer is not. This reduces the political cost of police misconduct and can warp the public understanding of how and why police misconduct exists: Too often it is because the agency fails to deal with the bad apples until they’ve ruined the whole barrel.

Perhaps the most harmful impact of the Monell doctrine is that it prioritizes payouts for past misconduct rather than changes to policing that might prevent the same from recurring. A plaintiff can only seek, and a court can only order, changes to policies, practices, training, supervision or any number of other systemic drivers of policing harm if the defendant is the local government. An individual officer has no ability to make those improvements. This inability to obtain prospective changes — what the law calls injunctive relief — removes a tool that courts would otherwise have to order police departments to take the steps necessary to reform.

The Monell doctrine stems from the Supreme Court’s interpretation of a federal statute, Section 1983 of the Civil Rights Act of 1871, that gives individuals the right to seek compensation for violations of their constitutional or other federal rights. Congress has the power to undo the doctrine, and should make this a priority addition to the George Floyd Justice in Policing Act.

But it should also rein in qualified immunity. Officers should not be held liable for damages when they make a reasonable mistake. This is what qualified immunity is supposed to protect. But courts have been overprotective of officers to the point where immunity applies unless a person can point to a case where a previous court has found an officer liable for nearly identical conduct — in the same judicial circuit no less.

The absurdity of this Catch-22 situation is underscored by the fact that courts can dismiss a case on qualified immunity without deciding whether the officer’s conduct violated the law — making it perpetually impossible for plaintiffs to point to a case where an officer’s conduct, no matter how egregious, was found to be unlawful. Qualified immunity thus delegitimizes policing and fails to deter police misconduct.

Congress should change both qualified immunity and the Monell doctrine to ensure that officers who violate the law are held accountable, that victims of police abuse are fully compensated and that local governments are properly incentivized to do everything they can to prevent police misconduct from happening in the first place.

Read more:

Ruth Marcus: The Supreme Court invented qualified immunity. Now, a judge’s blistering opinion shows why it must go.

Deborah D. Douglas: The problems with policing are vast. Ending qualified immunity should be just the start.

James A. Wynn Jr.: As a judge, I have to follow the Supreme Court. It should fix this mistake.

Nick Sibilla: Virginia must tackle qualified immunity

Anya Bidwell, Patrick Jaicomo and Alexa Gervasi: It’s nearly impossible to hold federal officers accountable. The Supreme Court can change that.

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