Here's How to Change Policing

Law Enforcement for Law Enforcement

Hi, Ari here, and let me share a few things with you:

• Today’s newsletter is about a concrete way to change policing, (building on our continued reporting).

• Tomorrow Dr. Fauci is on The Beat—so tune in or DVR on Wednesday if you want to catch him.

• If you like the newsletter, please do subscribe or share:

---

Law Enforcement for Law Enforcement 

You have heard the stories—a man is killed by the police, it’s caught on video, and his family has basically no legal recourse. Or, a man is paralyzed by police misconduct, putting him in the hospital and requiring lifelong medical care. But he can’t even get restitution to cover those costs.

The reason: Police have a special “immunity” from many lawsuits.

You have probably heard the technical term—“qualified immunity”—which shields police from their day in court. But where did this even come from? This is important:

Police immunity is made up. 

Yes, the legal thing we hear about so much, that limits or halts even civil suits against police—nevermind criminal prosecution—is a made up legal construct. It is not in the Constitution. It's not in a written federal law.

It grew out of a series of cases where courts were trying to limit how much people could sue government officials. It began back with a 1960s lawsuit, by civil rights advocates and priests, who were challenging segregation.

They sued police to challenge their arrests for “breaching the peace” (charges that were thrown out). The case went all the way to the Supreme Court, which found that even though the arrest was wrong, the suit would still be tossed without any trial (Pierson v. Ray). Otherwise, the Court reasoned, police could be hit with costly fines for even an “honest mistake” on the job.

The current Supreme Court has upheld and even fortified this doctrine, with some notable dissents.

And this immunity is not just a ‘setback’ for people who might sue the police. It undercuts the role of civil courts in fact-finding. It means the public never get the facts in many cases. We never get the public trial about what police did in controversial incidents—like paralyzing or killing Americans they serve—because unelected judges prevent those trials.

That's unfair to the people who are hurt or killed. And it also risks more violence and more police misconduct. As any officer will tell you, real consequences create deterrence. (That’s one of the key rationales for punishment in Western law.) When there are no possible consequences, some people—not all officers—but some, will see it as a blank check.

Ending a Made Up Rule

Now, since this rule was made up, it can be unmade. Congress can literally just eliminate it.

The George Floyd Justice in Policing Act does that. And remember, House Democrats already passed that bill. 

It’s currently caught up in Senate negotiations.

And what’s the greatest sticking point for Republicans?

They are demanding Democrats strip immunity reform out of the bill to even possibly get a vote (under filibuster rules, a story for another newsletter).

So, where do we go from here? 

I’ve worked on these issues for a while, and American policing is often simplified into a largely false choice between ‘what's good for police,’ or ‘what's good for people being policed.’ 

Now, some examples that might fit into that frame. But many don't.

Fair, accountable policing is generally good for everyone. If no one's above the law, that's got to especially include the powerful—the politicians who write these laws, and the police who enforce them, with guns.

The basic right to your day in court and trial is not some benefit to be given out by unelected judges. It is your constitutional right. It's a right everyone should have. And it is a right that can be restored any time our nation, and our Congress, decide to step up and do so.