A few weeks ago, Virginian Audrey Redford, an assistant professor of economics at Western Carolina University, learned that the Virginia House of Delegates solicited open comments on a bill to end qualified immunity in Virginia. The comments would be read aloud to the delegation. So she wrote a comment. The bill failed by a considerable margin, but she got some satisfaction from knowing that someone read her statement to the delegates. Here it is.
Qualified immunity completely alters the incentive structure for law enforcement officers. It presents a significant moral hazard problem to the community. The inability to punish an officer who misbehaves and harms members of the public creates significant distrust in the community. In no other occupation is an individual protected for “doing their job” when they wantonly step outside of what is permissible. If policymakers are at all concerned with “weeding out the bad apples” in policing organizations, this is the way to do it. The claim that policing is so dangerous that it requires officers to sometimes act in egregious ways is false. The BLS and other non-partisan organizations consistently show that many occupations are significantly more dangerous than policing, including garbage collecting. [DRH note: also farming.] Yet the same immunity is not offered to them. In reality, policymakers afford law enforcement officers such an exception because they are a powerful interest group. They lobby effectively and raise significant funds for their preferred elected officials. To the many delegates who claim to not be in the pocket of any interest group, I implore you to examine the true motivations of why you might be opposed to passing such a bill that protects villains with badges in the community. Law enforcement officials ask ordinary citizens all the time, “if you’re not breaking the law, what do you have to worry about?” Now is the time to hold them to the same standard. Who, if not you, will guard the guardians? I suspect that if legitimate means to resolve this imminent issue are not taken, the community will step in and find a way to solve it for themselves. However, delegates, that may mean they find alternatives outside of the political sphere to stand up for themselves, and we know the government doesn’t like competition.
READER COMMENTS
Alan Goldhammer
Feb 12 2021 at 9:12am
I assume that BLS should have been BLM (Black Lives Matter). There is still a chance that something will be done in VA this legislative session as a different bill is still alive in the VA Senate. It was rather strange that the VA House did not move forward as they passed essentially same bill last fall.
Jon Murphy
Feb 12 2021 at 9:19am
BLS stands for Bureau of Labor Statistics. Her point is that the BLS tracks fatality metrics of various occupations and there are several more dangerous than law enforcement. I don’t recall anyone associated with the Black Lives Matter movement making that point.
Alan Goldhammer
Feb 12 2021 at 1:49pm
I misread the quoted sentence; yes, I do know that BLS is the Bureau of Labor Statistics.
alvinccente
Feb 12 2021 at 5:25pm
Qualified immunity is generally misunderstood. The underlying issue is state “tort claims acts” which provide that state and local government employees are not liable for intentional torts. Intentional torts are acts such as assault, battery, fraud, and other bad acts. I believe every state, and also the federal government, has these tort claims acts on the books.
Because judges and others believe that it is outrageous that police should be immune from such liability when ordinary people are not, the federal judges decided that the federal civil rights law, enacted a long time ago to prevent states from, e.g., blocking African Americans from voting, or allowing them to be lynched, should be extended to any kind of bad act by police against anyone, with the fiction that such bad acts are violations of the victims’ constitutional rights. So ordinary citizens who have been roughed up by the cops then could claim that their constitutional rights had been violated, and sue in federal court.
Well, it wasn’t too long before other federal judges felt this was a little too much of a free ticket to sue cops, so they invented the idea of “qualified immunity,” under which bad behavior by cops was not subject to a civil rights lawsuit in federal court if there had not been a prior court decision regarding that specific behavior holding that it was illegal.
So qualified immunity (which, as a federal law doctrine, is not subject to any Virginia legislation) is a kludge based on another kludge. What really ought to happen is that instead of having a series of judges making up various doctrines and claims and defenses essentially out of whole cloth, the state legislatures should amend their tort claims acts to allow suits against state employees for intentional torts, perhaps with some heightened standards to prevent a flood of meritlesss claims.
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