A proposed fix to police brutality might be a recipe for crime

Even clients with the most open-and-shut cases sometimes had to leave Lauren Bonds’ practice without a lawyer. She represented plaintiffs in police misconduct lawsuits.

“A man was moving into his own house, kind of late at night,” Bonds said, remembering one such instance. “He was detained by the police, handcuffed, and held at gunpoint. … I thought it was a pretty clear false arrest, Fourth Amendment claim.”

But she didn’t take the case.

Now as the executive director of the National Police Accountability Project, Bonds says cases like that often don’t go to trial because of qualified immunity—a legal doctrine at the center of the national conversation on police brutality. It exempts police officers from liability for violating someone’s civil rights while the officers are carrying out their official duties. In 2014, the Supreme Court bolstered qualified immunity by ruling in favor of a police officer who fatally shot two suspects after they fled a traffic stop for a broken headlight. Critics of the doctrine say it makes it more difficult to hold errant police officers accountable.

Congress is now eyeing legislation to remove qualified immunity even as its supporters voice alarm about what that could mean for police departments across the country. Last month, Tyre Nichols, a 29-year-old resident of Memphis, Tenn., sustained serious injuries at the hands of multiple police officers when a traffic stop turned violent. He died three days later, and five of the officers were charged with murder. The incident has renewed a national discussion on police brutality and what lawmakers can do to stop it.

Some lawmakers are mulling what would change if qualified immunity ended. Bonds explained that qualified immunity isn’t spelled out in legislation. It’s a legal doctrine that stems from the Supreme Court’s ruling in the 1967 case of Pierson v. Ray. Even a case built on a seemingly blatant offense won’t hold up in court if it doesn’t line up with previous court rulings. Instead, courts must evaluate the case in light of past decisions.

Chuck Horst is a Republican member of the West Virginia House of Delegates who has considered changes to qualified immunity. He believes his constituency in West Virginia wants to see a change, but he would be more supportive of writing the doctrine into law than removing it altogether.

“I think the people’s representatives should be making those choices, not the court’s rulings,” Horst said.

Legislators in Colorado did just that in 2020. Gov. Jared Polis signed a law removing qualified immunity and making other changes to law enforcement practices.

In the absence of qualified immunity, Colorado’s bar for holding police officers personally liable has dropped dramatically. It’s unclear whether that has made officers less likely to engage in misconduct. Bonds says that’s in part because police misconduct that didn’t happen is harder to point out than abuses that did. Part of the change is also hidden in legal filings and court proceedings.

“That’s been a little harder to track just because all cases move at different rates,” Bonds said.
“You really have to go through each case by case. There’s not a great dataset we can work with, given the information the Colorado state court shares with the public.”

Internally, there are an increasing number of police officers who have been disciplined, according to the Colorado Department of Law. In 2019, 27 officers in the state of Colorado were released or resigned for misconduct. In 2022, 43 left the force under similar circumstances. That could mean that departments are cracking down harder on misconduct, but a clear explanation is difficult to establish.

But there’s another side of the coin—one where measurable results are more visible. Gabe Evans, a former police lieutenant and now a state representative for Colorado’s 48th District, says the law immediately affected police recruiting and staffing. Without qualified immunity, police officers’ personal assets are at risk if a civilian sues them for decisions they made in the field.

Evans remembers the moment he found out about the bill.

“My chief at the time called a meeting and told us ‘look, there’s a bill that’s been introduced if it passes in its current form, I as the chief of police am telling you that you’re going to need to have a long and hard look at whether you can continue in this profession.’ That was our notification that this was happening,” Evans said.

I asked him how much of a role that would play in a hiring situation and whether qualified immunity on its own could make or break a decision to become an officer.

“Yes,” Evans said. “It’s huge.”

According to polling from the Colorado Municipalities League, 52 percent of the state’s municipalities expressed difficulty staffing their forces due to increased civil and criminal liability. Other factors such as inadequate pay, rural locations, and public posture toward law enforcement played a role in staff shortages.

Crime rates have also gone up. According to the Colorado Department of Public Safety, the number of violent crimes grew 19.5 percent from 2019 through the close of 2022, while motor vehicle thefts jumped by 102 percent and property crimes increased by 13 percent. The numbers mirror crime increases in other U.S. cities but are still well above the national average. From 2019 to 2021 for instance, the national violent crimes increased 9 percent by comparison.

Evans says he isn’t wearing rose-colored glasses when it comes to police behavior. He recognizes that when things go wrong, they need to be addressed. But for now, he believes removing qualified immunity has done more harm than good in retaining the right people in uniform.

“You look at that and you go … why am I doing this job? No one is forcing me to be a cop,” he said. “I’m putting my financial security and reputation on the line and there’s going to be no protection for me if, in a gray area of the law, I have to make a split-second decision and then I’m made personally liable.”