Can qualified immunity and police accountability coexist? Two experts weigh in

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• Judy Woodruff:

  Congress is on recess, but a small group of lawmakers are still in talks on police reform. And word came today that negotiators are no longer tackling a major issue.

  Lisa Desjardins explains.

• Lisa Desjardins:

  It's called qualified immunity a legal principle which can protect officers from lawsuits for what they do while on the job.

  Police reform advocates have long wanted it to end, while others think it's an important protection for law enforcement. And dropping it from police reform talks makes it easier for conservatives, but possibly harder for progressives to get on board.

  To help us understand the different sides of the debate, I'm joined by Joanna Schwartz, professor of law at UCLA and a leading expert on police misconduct litigation, and Lenny Kesten, a lawyer in Boston who has represented hundreds of police officers in civil rights cases.

  To both of you, qualified immunity for police has been a major flash point in this discussion, but you both agree that it isn't granted by courts all that often.

  Joanna, I want to ask you, then, what's the biggest issue with it? Why is it important?

• Joanna Schwartz:

  Qualified immunity protects law enforcement officers and other government officials even when they have violated the Constitution, so long as there's not a prior court decision with virtually identical facts.

  That means people who have had their rights violated, sometimes in egregious ways, by law enforcement have no basis for relief, for the harms that were caused to them. Qualified immunity also dramatically increases the costs and burdens to plaintiffs in bringing these cases. It focuses courts on whether there's a prior court decision that holds the law unconstitutional, as opposed to what actually happened in the case.

  And there's a variety of ways in which qualified immunity makes it more difficult for law enforcement to understand what they're constitutionally allowed to do.

• Lisa Desjardins:

  Lenny, how important is this?

• Lenny Kesten:

  It's important that police officers know — are apprised of the rules before they break them.

  It's easy to say that they violate the Constitution. All the Constitution says, the contract has to be reasonable. It doesn't lay out any rules. It's court decisions that lay out rules, so the officers know what does and what is not constitutional.

• Lisa Desjardins:

  But, Lenny, how do you respond to the idea that some say giving this immunity to police officers takes away accountability? Why should police officers have immunity ever in a court of law from what they do?

• Lenny Kesten:

  You know, it's just — it's people arguing with the name. They think it's an immunity. It's not.

  Think of it this way. All that qualified immunity does is say, if the police officer has no way of knowing that he — that what he or she was doing violated the Constitution, they can't be held liable for that action. It's an issue of fairness to the police officers.

• Lisa Desjardins:

  Joanna.

• Joanna Schwartz:

  That's not the way in which qualified immunity actually works in principle.

  It is true that the Constitution does not lay out specific rules, but the Supreme Court in its Fourth Amendment doctrine in the court decisions that it has had do lay out general principles. And what qualified immunity requires is not that law enforcement officers follow those general principles, but that the plaintiff be able to find a prior court decision with virtually identical facts.

  As just one quick example, it is well-known and established that a police officer cannot use force against a person who has surrendered and is not posing any harm.

  But a man named Alexander Baxter had his case thrown out of court on qualified immunity grounds when he had surrendered to police with his hands in the air, and the officers nevertheless released a police dog on him, even though, in that same court, they had said releasing a police dog on a person who was lying down in surrender was excessive.

  To the court's mind, Alexander Baxter's case was not similar enough, because he was sitting up, instead of lying down, when the police dogs were released upon him. This is not a matter of notice. It's a matter of common sense. And officers should be able to understand that it is not appropriate to release a dog or to use force against a person who has surrendered without being able to identify a precise case with virtually identical facts.

• Lisa Desjardins:

  Lenny, what do you say?

• Lenny Kesten:

  I disagree. I have read the case.

  The issue is whether the person clearly surrendered. I, in fact, provocation in which we agreed before the trial that if the dog was released, released after the man had surrendered, that the officer was liable. The question was, did that happen?

  So I disagree. When you look at the actual facts of the cases that are cited, it doesn't come out like that.

• Lisa Desjardins:

  One other issue on the table here, perhaps going off the table now, is the idea of making it easier to sue police departments.

  I want to ask each of you if you think that could significantly help with issues of policing right now.

  Joanna, first?

• Joanna Schwartz:

  Well, right now, it is as difficult to sue local governments for the constitutional conduct of their officers as it is to sue the officers themselves. Qualified immunity shields the officers.

  And there's a whole set of legal barriers that a plaintiff needs to overcome in order to show that a city essentially violated the Constitution. So, removing those barriers would mean that local governments work the same way as private businesses do.

  When a person is harmed by an employee of a private company, they can sue that company as the employer and recover against them directly. You can't do that as it stands right now. And so that would facilitate things and in some ways be an end-around qualified immunity.

• Lenny Kesten:

  This is a false argument.

  As it stands now, in 99.9 percent of the cases, if an officer is found liable, the city or county or town pays. Who pays? The taxpayers pay? That's — that will — that won't change anything. You don't need to sue the city.

  And experienced plaintiff's lawyers don't sue the city. They just do the officer, because they're going to get paid.

• Lisa Desjardins:

  I believe you both agree that the system should change.

  Lenny, what do you think should happen, briefly?

• Lenny Kesten:

  The system can always be improved. I think, as it stands now, police officers have a terribly difficult job.

  And they — and almost all of them do it well. But what's the most important thing that could be done is to make discipline of police officers more certain — more certain. Right now, because of arbitration awards and civil servants' decisions, all too often, the employer, the police department has to rehire or re-put that officer back on the street, and that could be improved.

• Lisa Desjardins:

  Joanna.

• Joanna Schwartz:

  I certainly am in favor of improving internal discipline and supervision.

  I also think that there's a lot more that can be done. Certainly, there are changes that can be made on the front end that reduce the frequency with which people are harmed or killed by the police. We are seeing a lot of experimentation around the country thinking about when police can and should do traffic stops, who should be responding when people are in mental crisis.

  But we also need to think about back end accountability. There has to be consequences for officers when they — when they violate the law. And there needs to be remedies for people whose rights have been violated.

• Lisa Desjardins:

  Joanna Schwartz and Lenny Kesten, this is an important and complex debate. And we really appreciate your sharing your thoughts with us.

• Joanna Schwartz:

  Thank you.

• Lenny Kesten:

  Thank you for the opportunity.