We are all asking ourselves how we can move forward as a nation to end systemic racism and stop the use of excessive force by law enforcement officers. One of the simplest reforms we can implement is to end the use of “qualified immunity” to defend officers in civil rights lawsuits. We don’t have to wait for federal action. The city of Bend and Deschutes County can act now to protect the rights of Central Oregonians and enhance trust in our hardworking law enforcement officers.
Qualified immunity is a judge-made rule that protects law enforcement officers when a civil rights plaintiff cannot prove that the officer violated a “clearly established” right. This creates a Catch-22 because plaintiffs often cannot point to a case where a court clearly established such a right. Those prior cases often don’t exist because cases explaining what is “clearly established” get dismissed based on the qualified immunity doctrine. This system perverts the basic idea that Americans can sue government actors who violate our constitutional rights.
On Monday, the U.S. Supreme Court had the opportunity to reconsider the doctrine, but declined even though both Justices Sonia Sotomayor and Clarence Thomas had expressed a willingness to do so. Congress could fix this too. Rep. Justin Amash has proposed legislation to end qualified immunity in civil rights suits. Dozens of current and former stars from the NFL, NBA and MLB signed a letter to Congress in support of the bill. But it is unlikely to pass, and even less likely to be signed by this President.
Local governments should stop this injustice now instead of waiting for the federal government. In cases where a government is paying for the defense and the damages of an officer anyway, Bend city councilors and Deschutes County commissioners should move to eliminate qualified immunity as a defense. Our public bodies answer to us as citizens. We can ensure that they protect the rights of our citizens consistent with the Constitution and the Civil Rights Act of 1871.
Our hardworking officers would benefit from an end to qualified immunity, as well. Good law enforcement officers don’t need a get-out-of-jail-free card. They work hard to serve Central Oregonians and protect people’s rights. Police officers are disserved by a system that puts a finger on the scales of justice in their favor. The knowledge that our officers are held to the correct standard — simply not violating constitutional rights — will instill more trust in police and begin rebalancing a system that we know is broken.
There is a real cost to doing this. Qualified immunity protects governments and the insurance companies who insure them. But if our officers violate the rights of people in Bend or Deschutes County, we should make those citizens whole. If a City vehicle runs over a pedestrian, we compensate that pedestrian. If our officers violate the constitutional rights of people, those citizens deserve to be compensated too. The city and county are in a much better position to bear the risk of this type of harm than the people whose rights are violated. More importantly, local governments and their defense lawyers can defend such cases on the merits and the facts. Defense lawyers do not need to have the deck stacked unfairly in their clients’ favor. They are good at what they do. And Central Oregon juries are smart and fair.
The civil rights movement of 2020 has shown us that we all have an obligation to dismantle unjust systems at every level. Central Oregon should not wait for Washington, D.C., or Salem to protect the rights of Central Oregonians. We have the obligation to address injustice where we see it. Ridding Central Oregon of qualified immunity for indemnified law enforcement officers is a start.