Reality Check

Don’t Throw the Baby Out With the Bath Water

The truth is, no policy change would have prevented Mr. Floyd’s death

By Tammi Fisher

Derek Chauvin was recently convicted of killing George Floyd while on the job as a police officer. Since Mr. Floyd’s death, law enforcement policies have come under additional scrutiny in a haphazard attempt to ensure deaths such as Mr. Floyd’s don’t reoccur. The truth is, no policy change would have prevented Mr. Floyd’s death. It was not a policy that failed; it was a person.  

One of the promoted changes to add “accountability” to law enforcement actions is the wholescale repeal of “qualified immunity.” Members of the public and criminal suspects can be injured during a lawful arrest or encounter with police. In particular, when suspects resist arrest, injury to both the suspect and the officer can occur. If a person believes his or her civil rights under the Constitution have been violated (whether physical injury is present or not), a civil lawsuit may be filed against a law enforcement officer personally – not in the officer’s professional capacity where insurance is available or where the defense is paid for by the taxpayers. The financial risk is high when such a claim is made; the officer can lose every dollar he or she has or will produce in the future if found liable. To prevent good cops from having to endure years’ long civil suits for actions taken correctly in the line of duty, the defense of qualified immunity exists, which causes dismissal of the claim in a specific circumstance. The alleged victim must establish a prior similar case that has held unconstitutional an incident with virtually identical facts to the one the alleged victim is bringing. It’s a high burden for an alleged victim and one that creates a “chicken and egg” problem. How can a situation be deemed unconstitutional in the first instance if the required proof is that the situation has already been deemed unconstitutional? Modification is in order, but wholescale abolishment is not. 

The statistics establish that, even with its deficiencies, qualified immunity works to hold many bad cops accountable. Between 2017 and 2019, 56% of excessive force cases were dismissed based upon qualified immunity. This statistic also informs us that civil lawsuits are not a deterrent to bad conduct and do nothing to increase accountability. In the same manner that laws against killing cops don’t deter criminals from murdering cops, repealing qualified immunity will have zero effect on deterring bad cops from harming others. However, full-scale repeal will prevent good cops from being recruited or continuing to work in public service. Because expensive, frivolous lawsuits exist. Asking good cops to risk their lives every day is a monumental request; asking them to carte blanche risk their families’ financial security is too much. And a community without adequate law enforcement is not a community where any of us would choose to live.  

Tammi Fisher is an attorney, former mayor of Kalispell, and host of the Montana Values Podcast.

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