LA should redefine qualified immunity

Just because a previous effort didn’t suffice doesn’t mean Louisiana legislators shouldn’t look seriously at altering the concept of qualified immunity for state and local officials.

Qualified immunity, first articulated by the U.S. Supreme Court over a half-century ago, is a judicially created legal doctrine that shields government officials performing discretionary duties from civil liability in cases involving the deprivation of statutory or constitutional rights.  Government officials are entitled to qualified immunity so long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

Thus, at the state and local level, plenary organs may establish what kinds of acts fall under this kind of protection, if any. It doesn’t extend to criminal behavior, but prevents levying monetary judgments against government officials who cross boundaries and reasonably knew that. In doing so, this protects officials – almost always law enforcement officers – from punishment when thrown into nebulous situations with imperfect information available for decision-making.

Currently in Louisiana, for law enforcement those specific boundaries don’t exist as the law doesn’t go beyond what federal courts have articulated. With one exception, statute instead defines the line generally, in that immunity exists “while the officer or employee was acting within the course and scope of his office or employment and while taking reasonable remedial action … unless such damage was caused by willful or wanton misconduct or gross negligence.” Additionally, qualified immunity doesn’t apply “if injury to or death of a [felony] perpetrator results from an intentional act involving the use of excessive force.”

During the just-concluded 2020 special session of the Legislature, Democrat state Rep. Edmond Jordan tried to change this with his HB 51 that would have stripped such immunity for claims of wrongful death or physical injury by law enforcement officers. A House committee rightfully rejected that bill given its overbroad application and implications.

But that doesn’t mean some tweaking of the doctrine shouldn’t occur. In the present environment, too many instances occur where law enforcement personnel may not engage in criminal behavior but commit actions which on face would appear to deprive people of rights, yet because no extremely specific statute or judicial ruling defines such behavior as that then civil redress cannot be attempted or occurs. Further, the current standard may not discourage sufficiently crossing the line, leading to more civil suits than necessary that typically impact taxpayers as most local governments indemnify their officials.

So, if any reform comes to the concept, it must be targeted and precise. One potential model exists at the federal level, with Republican Sen. Mike Braun’s S. 4036 that would remove the existing doctrine of qualified immunity and instead provide that an individual defendant “shall not be liable” if the defendant reasonably believed that his conduct was lawful and either (1) the conduct at issue was “specifically authorized or required” by federal or state law, or (2) a federal or state court had issued a final decision holding that “the specific conduct alleged to be unlawful was consistent with the Constitution of the United States and Federal laws.”

This change of burden of proof from the plaintiff, adapted to the state level, wouldn’t open the door but a crack for justiciable cases against law enforcement (or any state and local government) official, yet just enough to discourage egregious behavior. Just last month, the Supreme Court rejected review of a slew of cases that could have contracted the field of actions, but at the same time such a law would provide a major incentive for government to police itself much better.

Simply, with statute at hand (and statute adjusted accordingly to incorporate certain conduct) and knowledge of court rulings, training would emphasize exactly what immune conduct is and is not to avoid the hassle and bad publicity that goes along with unfortunate incidents, such as recently happened in Shreveport. And by adding another provision that forces agencies to indemnify their officials, it creates another layer of incentive to train well and weed out officers that seem prone to inviting these complaints, which will go a long way to mooting the question by reducing the incidence of questionable acts. All while inviting the compensation of people and families wronged in obvious instances.

HB 51 was rushed and half-baked. But now the Legislature has months to develop an adjustment that both discourages misconduct without threatening honorable officers and public safety while offering a chance at redress to those genuinely harmed by any misconduct. It should do so.