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In the wake of the death of an unarmed man at the hands of Memphis police – video recordings of which we have all personally witnessed – the time has come to raise a red flag on what this recently retired police officer believes to be an important effect of qualified immunity. Memphis was a case of malignant police culture in action.  This was not a case of an individual officer acting in secret, nor was it a case of the Thin Blue Line protecting an officer from scrutiny. Those involved were engaged in groupthink from start to finish and, revealingly, without premeditation.   Violence was their default mode.

Violence is learned behavior.  And judging from the ineptitude with which it was deployed at each step in the process in Memphis, from the initial traffic stop to the awkward tackling to the inability to control the subject, this violence was not learned in a highly controlled professional setting.   This was mob behavior, less a series of bad decisions than the product of a culture developed on the streets.

To be clear, police culture has been improving, which surely says more about how bad the past was than how good the present is.  I personally saw progress over the course of the brief eleven years that I worked as a police officer in Broward County, Florida.  But as anyone who has worked both as a LEO and in a job with bottom-line responsibility can tell you, there remains an unnatural buffer between an officer’s actions and personal responsibility.

The doctrine of qualified immunity, created years ago by federal courts, was intended to resolve the tension between society’s interest in empowering police and the need to hold officers accountable for bad actions.  As citizens we understand that holding government agents accountable is the only way to protect our Constitutionally enshrined civil rights and that transparency is the only way to promote faith in our community institutions.  Police advocates, on the other hand, point to the need for this buffer to protect officers operating in good faith.   Who would take the job if making an honest mistake at work one day could cost you your job or even your house?   

The answer is someone with liability insurance.  The market does not tolerate surgeons telling their accidental victims that because there was no malign intent there need be no compensation.  This is because courts have not extended immunity to doctors, who, as a result, acquire malpractice insurance.  Those who lack the skills to avoid imposing costs on their insurance providers are penalized by higher premiums until they get priced out of the market. This is how policing should work as well.

Unfortunately, the courts have swung so far toward the protection of police officers as to undermine the fundamental American principle of access to redress in court.  Though it is true that qualified immunity directly affects relatively few cases – and no criminal cases – the mechanism stands in stark contrast to our principles, contributing mightily to our current culture of law enforcement impunity. 

Ending qualified immunity would be a first step toward signaling to officers that police culture must change.   It would also be a first step toward introducing a third-party check on LEO adherence to best practices.  Liability insurance providers could not be stymied by unions or employers reticent to provide the performance and training records necessary to rate the risks presented by individual officers.  This is how we as citizens would want markets to work and this is how we as Americans would want culture to change.