We asked several people, including state legislators, to explain what qualified immunity is. It quickly became evident they did not understand it.
Did you know almost all public employees have qualified immunity?
Because qualified immunity is so fundamental to the entire process of good government, we believe everyone should know what it is before speaking out in support or opposition of it.
Qualified immunity is also called “good faith immunity.”
Good faith in legal terms means dealing fairly with others in an honest and sincere way. It comes from the Latin term bona fide, literally good faith.
“Good faith is an abstract and comprehensive term that encompasses a sincere belief or motive without any malice or the desire to defraud others,” (legal-dictionary.thefreedictionary.com).
It protects government officials like records clerks, administrators, librarians, legislators, judges, and governors, if the public employee is doing his or her job in “good faith” and in a reasonable way.
Qualified immunity is important because it is a balance between your right as a taxpayer to hold public officials accountable and your right as a taxpayer to expect public employees to do their job without fear of losing everything they have to defend themselves from frivolous lawsuits.
Everyone knows how expensive lawyers are. Defending against one lawsuit is extremely expensive but defending against numerous frivolous lawsuits is expensive on steroids.
The fees for a non-specialist lawyer in our area are between $200-$400 per hour. Attorneys who specialize charge between $500-$1,000 per hour.
One defense case would wipe out a public employee’s life savings, including the need to sell one’s home, vehicles, and other possessions.
Most people do not face that kind of a threat police officers do.
Police officers are routinely called to a scene to settle conflicts and are therefore regularly in the middle of disputes and conflicts. That creates liability exposure.
To get qualified immunity a public official must meet two conditions to “qualify.”
Condition 1: The public employee must be doing the public’s work.
Example of things not covered are an employee who knowingly violates laws and constitutional rights which reasonable people knew or should have known.
Condition 2: The public employee must act in good faith.
In other words, was the employee doing the job in a way that any reasonable person would do it?
For example, it is not the public’s work if a public official conspired with others to stage protests, which included prepositioning stacks of bricks near a storefront with plate glass windows.
Any reasonable person would know or should know that staging bricks and rocks would result in property damage and/or personal injury to innocent people.
Qualified immunity can be summed up in that it “protects all but the plainly incompetent or those who knowingly violate the law,” (Malley v. Briggs).
----- WHY NOT eliminate qualified immunity for all public employees?
We are told the primary benefit of eliminating qualified immunity would help make policing more accountable and transparent.
But police officers and police agencies are already the most scrutinized people and organizations in any government. They have multiple levels of oversight at the federal, state, and local levels, including oversight by the news media.
Why do the proposals to eliminate qualified immunity only apply to police officers?
Think of it this way, because qualified immunity applies to nearly every government employee, then would eliminating qualified immunity all government employees make all government more accountable and transparent. Why just the police?
Let us say you are a police officer and you got a radio call to a family disturbance. When you arrive, the wife has two black eyes, facial abrasions, and a bloody lip. She states, “He beat me and threatened to kill me.”
You see abrasions on the husband’s right hand. What do you think happened?
You call for a backup before attempting to arrest the man for spousal abuse. You already know he is violent, you just have to look at his wife to see that.
Suddenly the man charges his wife while yelling at her, “I’ll teach you for calling the cops!”
As a police officer, you have a pistol, perhaps a less-lethal device like a Taser, and a baton (night stick). What do you do?
Do you use lethal force -- pistol; or do you use a Taser or a baton?
Regardless of what you use, in order to stop the violent attack, you must use violence to stop the violence. People who are out of control with rage do not listen to reason and logic.
The use of force is likely to result in injuries. Not because you want it to happen, but because the husband is violently out of control and your job is to protect the spouse and restore order.
Suddenly, the man pulls a gun to shoot his wife. It takes him less than a second. You react to the threat in less than a second by drawing your gun and shooting the man. This all occurs in less than two seconds.
You followed the policies, procedures, techniques, and law, just as you were taught.
Should the man who shot and killed his wife be allowed to sue you personally because his wife died?
Sound absurd? If qualified immunity is eliminated, the man could sue you personally.
You could lose all your possessions, not because the man won the court case, but because you had to sell everything to pay your defense lawyer.
If you don’t defend yourself, the judge has no choice but to find against you. You have to defend yourself because qualified immunity was eliminated.
Would you do the job of a police officer if you were exposed to something like that on every radio call?
The lessons of Aesop are as true today as they were 2,500 years ago: Be careful what you ask for, you may receive it and then regret it.
(Jason Delair is president of the Fontana Police Officers Association.)