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.
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