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How cops and prosecutors became immune to lawsuits

By Benjamin Wetmore

The political pressure has lately arisen to hold police accountable. The public, though, has little idea how to do that, so they rely on interest groups and pressure groups to give them the answer. The tempting answer is to expose the police to civil lawsuits, to remove what is called ‘civil immunity’ for their actions on the job. 

Whenever society finds a silver bullet solution to long-term problems, rest assured the solution will likely be worse than the problem. By simply removing civil immunity, we’re likely to make the problems facing policing worse, not better. Understanding the history of where civil immunity for police came from is a helpful start in understanding this issue. 

The first modern police force started in Boston in 1838, designed to protect the many shipping interests in that port city. Other major cities rolled out their police forces over the next few decades. It was partially to push down crime, but also for the purpose of protecting the city’s political class. 

Prohibition brought widespread crime and the police to regulate it. Prohibition and the depression-era bank robbers brought about the federal police force to stop interstate crime. Crime brought about a growth in policing. 

That growth of policing, spreading even to smaller communities, was a response to crime. However, it was largely unregulated and uncontrolled by the population because it was wedded to the political structure. If the police were out of control, it was because their paymasters and superiors were, at the least, permissive. 

But two subsequent events greatly shifted that dynamic: the Warren Court’s imposition of policing standards, and the enormously destructive riots of the 60s. Both were blowback reactions to the decades-long trend of police growth. 

The Warren Court told police they had to follow the Constitution in the same way Congress had to. It applied or ‘incorporated’ the Bill of Rights against the local patrol cop, which was not the express intent of the Constitution. While the Court did so, it begrudgingly recognized modern policing couldn’t occur if every police action was subject to later litigation. 

At first, the Warren Court extended the fourth amendment to every police action in Mapp v. Ohio in 1961, and later explicitly authorized civil rights lawsuits against local police. But by Pierson v. Ray in 1967, the Court clarified that an officer is not exposed to civil liability. This means they cannot be sued as an individual unless they violate ‘clearly established law.’ 

But then in the Bivens (1971) decision, the Warren Court essentially said that if there was a wrong committed by the police, there was a legal remedy. This gave every victim of police abuse hope that they could win in court. 

There was some hope that victims could file 1983 Civil Rights lawsuits. They were named for the section of the Civil Rights Act of 1871 that allowed federal lawsuits against people who acted ‘under color of law’ to deprive someone of their Constitutional rights. By filing, they would be able to remedy police abuses and injustices with lawsuits. 

The Warren Court gave this movement life in 1961 but was largely circumscribed and limited by the Rehnquist court in 1982 and 1983.  

The Rehnquist court largely raised the standards of 1983 claims and made it harder to get civil rights claims into Court. Instead of eliminating the section, it just made it much harder to file a successful suit and prevail. 

Since that time, nearly 40 years ago, police forces have greatly expanded. They’ve expanded the militarization of their police forces and been subject to much more media and community scrutiny. The police were given ‘qualified immunity’ by the Warren court in 1967 for ‘good faith’ actions in Pierson v. Roy, and then given what we now know as qualified immunity by the Rehnquist court in 1982’s Harlow v. Fitzgerald.  

The missing piece was the number of harassment lawsuits residents filed against police in the 1960s and 1970s. This caused cities to effectively defang and otherwise defund their departments. Crime rose in every major city during this period because cops were afraid of being sued by every criminal who thought he was abused. 

Police immunity is meant to be a shield against harassment lawsuits filed because of the right to sue that was given by the court. The Warren court made the problem, the Rehnquist court tried to solve it. Both have made a mess.  

What’s going on now is that our society is not resolving our disputes properly through the legislative process. We’re resorting to judicial fixes for problems too spread out, diverse, particular, and discrete for national rules. 

The police are the imperfect point at which bad court precedents and government policy intersect with the public. The failure of our police forces stems from the occasional ‘bad apple.’ Much more often than ‘bad apples,’ however, are those just given inconsistent and incoherent directions. 

Many police officers are just trying to get through their shift and not interact with the public to preserve their pension. They don’t want a write-up, paperwork, or lawsuits.  

As a society we can’t agree on what causes crime. Our politicians can’t be honest about what causes crime and possible solutions, but we expect the police to clean up the mess. Our society is a cultural wreck, with destructive influences amplified to the max, and the police are the ones on the street left figuring out what to do.  

The political left wants to ‘defund the police,’ but they want the police to enforce their desired laws and social dictates. They want masks enforced, shutdowns enforced, and guns confiscated, but the police are the ones who’d carry those policies out. 

Even with less partisan issues like drunk driving, domestic violence, or assault claims, the police have to figure out what’s a credible claim and what’s not and have to do it on the fly.  

Because our society doesn’t find solutions to these issues, they get punted to federal courts. The courts have few ways to solve social problems except by exposing certain groups of people to predatory trial lawyers and harassment lawsuits. The Warren court tried that and failed, and the Rehnquist court tried to reign that in and it also failed. 

As a society we need the social courage to confront the causes of crime and what to do about criminal behavior. Then, we need to change our laws through the state legislature. 

Broad stroke reforms and national solutions will, once again, only make the problem worse.

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Benjamin Wetmore

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