Keep police protected from lawsuits? Yes, qualified immunity must be preserved.

About 40 years ago, the Supreme Court defined the principle of qualified immunity, recognizing the dynamics of situations faced by government officials, including law enforcement, and affording protection from litigation for good-faith actions that do not violate established law.

The doctrine of qualified immunity was born from a simple concept: Government employees must perform discretionary functions to successfully execute their duties. Holding government employees to strict liability for the consequences of their decisions, which routinely occur in unpredictable environments, would result in the reluctance of officials to make any decisions at all.

Qualified immunity is a recognition of this concern. This legal doctrine does not apply when a government employee violates a person’s constitutional right, and when that right has been clearly established. Think about the second requirement — the right has to be clearly established. This means that the employee knew or should have known their conduct would violate a person’s rights.

Interpreting constitutional case law can be complicated and confusing. Even courts sometimes cannot agree on how provisions are to be interpreted. Why should government employees be held accountable for something they could not know is prohibited?

Cops do not have the luxury of a team of lawyers, advisers and judges accompanying them in the field to help make legal assessments and critical decisions. Even when cases are litigated to examine the actions of a police encounter, the facts are routinely argued and deliberated upon over the course of months or years. Qualified immunity affords protection to the reasonable police officer making reasonable decisions under difficult situations.

When municipalities make a motion for qualified immunity, the court is required to analyze the case on the facts most favorable to the plaintiff — the person bringing the case — not the municipality. This is a significant advantage to the plaintiff, an aspect often ignored by advocates for repeal, and often results in courts denying qualified immunity.

Some cases repeatedly cited by advocates for repeal have egregious results. But for most cases, qualified immunity does exactly what it is supposed to do — allow the cases that belong in the judicial system to move forward and remove the ones that do not.

It’s no consolation that the current draft of a bill to eliminate qualified immunity indemnifies police officers individually (unless they commit a crime), making the employer liable for damages. This is truly an argument of principle. Police officers routinely make good-faith, well-intentioned decisions based upon their training, knowledge and experience, under unpredictable conditions. The current bill ignores this rationale, and instead, ratchets up a litigation machine which could be costly in dollars to taxpayers and to the morale of public servants.

Consider the impact of removing qualified immunity on the future of public safety. Our nation is already in a policing crisis. In the wake of extreme reforms in some municipalities, we have seen a mass exodus of senior police leadership and veteran officers with extensive field experience. They have said, "It’s not worth it anymore." Recruitment of persons willing to wear the badge is lagging. Why would someone want to serve and protect their community when they might face civil and criminal exposure for situations not of their making and often beyond their control, even when they act rationally?

There are many reforms law enforcement can get behind and support. This is not one of them. The elimination of qualified immunity is not a constructive approach in the debate on police reform. The fallout from such a move would seriously curtail the ability of the police to serve and protect our communities.

This guest essay reflects the views of Mark A. Spawn, director of research, development and training at the New York State Association of Chiefs of Police, Inc.