Brodesky: Take away legal shield protecting cops from wrongdoing

Photo of Josh Brodesky

If we should learn anything from repeated haunting police body-camera footage, it is that qualified immunity for law enforcement officers must end.

Those who enforce the law should not be shielded from legal consequences when their actions, or in the case of Uvalde, their inaction, are called into question.

Whether we are watching the video of Memphis police brutalizing Tyre Nichols on Jan. 7, or Texas officers standing in the hallway at Robb Elementary School on May 24, or reading about police in Fresno, Calif., accused of stealing $225,000 while executing a search warrant in 2013, there should be some legal mechanism for accountability — or at least the realistic possibility of accountability.

But qualified immunity, a federal judicial doctrine, shields those who carry the shield. It does this by making civil rights claims nearly impossible. A plaintiff must show that an officer violated someone’s constitutional rights — and that these are rights a reasonable person would have been aware of at the time.

And this combination, which sounds reasonable, has “been interpreted in some ways that make qualified immunity very difficult for plaintiffs to overcome,” said Alexandra Klein, a professor with the St. Mary’s University School of Law.

What has happened over time, she said, is courts have taken to exceptionally narrow readings of specific facts of cases, which makes it extremely difficult to establish precedent.

A previous case has to be very similar on major points of fact. And if there is no precedent, then it is hard to argue the law is clearly established, which then means precedent isn’t established — and so the circle goes like something out of a Kafka novel.

“It’s just about impossible” to successfully sue law enforcement officers, state Sen. Roland Gutierrez, D-San Antonio, who represents Uvalde, told me.

Gutierrez is hoping to change that at the state level. He has filed a bill, SB 575, to end qualified immunity for police officers.

This is one of 21 bills in honor of the 21 victims he has either filed or will file this session in direct response to the school shooting in Uvalde. The provisions in other bills include creating a Uvalde Victims’ Compensation Fund, raising the purchase age for firearms from 18 to 21, and empowering law enforcement to remove firearms when people are found to be a danger.

Our Editorial Board has supported these other bills — even if they stand no chance of passage in the Texas Legislature. They merit support because they reflect common sense, would save lives and represent an important part of any meaningful conversation about gun safety.

But to be clear, our conversation around guns is so broken, I would take any reform, no matter how modest, over no reform, and I am especially interested in any meaningful dialogue from gun rights activists concerned about the epidemic of gun violence.

But Gutierrez’s qualified immunity bill is in response to the infuriating failed law enforcement response in Robb’s hallways and the desire of Uvalde families to seek legal accountability. It also dovetails with calls for police reform following the repeated killings, often of Black men, the American public has witnessed through video — especially the murder of George Floyd in 2020.

“You can sue a lawyer for malpractice,” he said. “You can sue a doctor for malpractice. You can sue a priest. You can sue a teacher, but you cannot sue a cop for ordinary negligence.”

To extend this point: To end qualified immunity is to remove a key obstacle to overdue reforms. The threat of credible lawsuits might change behavior, culture or even the quality of recruits for law enforcement, all while validating civil rights claims.

“It’s just so tremendously difficult to get beyond that judicial hurdle that was put in place to protect these cops,” Gutierrez said. “And perhaps, you know, at one time that was valid. I would argue that, essentially, the invention of the bodycam has shown us what has probably always gone on with cops.”

The need for change can be seen in the videos before our eyes.