NYC Claims to End Qualified Immunity, But Has It Really?

On March 26, 2021, the City Council of New York City voted “to eliminate qualified immunity,” a legal doctrine that has protected police officers from civil rights lawsuits since 1967. According to Council Speaker Cory Johnson, New York is the first municipality in the country to take this important step towards police reform. However, a quick glance at legislation indicates that New York has not entirely eliminated qualified immunity; it has merely modified the existing law with a more symbolic than substantive gesture.

The doctrine of qualified immunity arose from a 1967 Supreme Court case, Pierson v. Ray. In that case, police in Jackson, Mississippi had arrested a number of Freedom Riders who were challenging the segregation laws in place throughout the South. Specifically, 15 white and black clergymen had attempted to use segregated facilities at an interstate bus terminal, and were charged with a breach of the peace. The law in question forbade “congregat[ing] with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refus[ing] to move on when ordered to do so by a police officer.”

Although the state dropped the charges, those Freedom Riders sued the arresting officers for false arrest and false imprisonment. Relying on the notion of sovereign immunity, a long-established legal doctrine, which basically says that a government entity cannot be sued unless it agrees to be sued, defendant officers claimed they were immune from lawsuits alleging civil liability for actions in the line of duty. In deciding the case, the Supreme Court observed that “common law has never granted police officers an absolute and unqualified immunity.”

However, the Court acknowledged the bind police would be in if they had to choose between being fired for dereliction of duty or paying damages to persons arrested. Therefore, to operate effectively, police officers must have some “qualified immunity,” that would shield an officer “from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional on its face or as applied.” Under qualified immunity, plaintiffs could not sue police officers unless the officers had violated an established right, which a reasonably well-trained officer would know he was violating.

Fast-forward to 2020 and the death of George Floyd in Minneapolis. The death of Mr. Floyd, while in custody and having been pinned to the ground for half an hour with an officer’s knee on his neck, shocked the nation and fueled protests of police brutality across the country. Officers in that case did face criminal liability, but the doctrine of qualified immunity may shield them from liability for civil damages. In order to sue, representatives of Mr. Floyd’s estate would have to show that a reasonable officer would have known the hold placed on Mr. Floyd was a violation of his civil rights. This is a difficult burden to meet, since Minneapolis training documents confirm that officers were instructed in the neck restraint employed on Mr. Floyd. Nevertheless, the Minneapolis City Council did reach a $27 million settlement with Mr. Floyd’s family.

Because he views qualified immunity as a remnant of the Jim Crow South, Speaker Johnson tweeted jubilantly: "Rooted in our nation's history of systemic racism, qualified immunity denied Freedom Riders justice and has been used to deny justice to victims of police abuse for decades. It should never have been allowed, but I'm proud that we took action today to end it here in NYC." But is that really what has happened?

In an interview on WNYC's The Brian Lehrer Show, Mayor Bill de Blasio admitted the new law does not subject officers to individual civil liability. "It makes it easier if someone has a concern to bring a legal action, but it does not put the individual financial penalty on the officer. It puts it on the department and the city, and that's what I was comfortable with." So, what has New York City done that is so revolutionary? Not much.

The New York City law that claims to eliminate qualified immunity only eliminates the requirement for plaintiffs to prove the officers violated clearly established constitutional rights. It does not subject officers to individual liability; the City will still pick up the tab for their wrongdoing. Since this law claims to be a response to police abuses, as exhibited in the Floyd case, it’s fair to ask what the new law might have changed. Unfortunately, there’s no reason to believe this law would have prevented Mr. Floyd’s death or resulted in a higher settlement for the family. One thing is sure: it would not have held individual officers civilly responsible.

Perhaps NYC officials are so loudly claiming a historic victory because the package of reforms they’ve passed is little more than smoke and mirrors. Tina Luongo, Attorney-in-Charge of the Criminal Defense Practice at The Legal Aid Society, may have best summarized the alleged reforms, when she said, "Mayor de Blasio had a genuine opportunity to implement urgently needed policing reforms. He failed to do that and instead produced a plan that at best glosses over the deeply rooted systemic problems within the NYPD that plague the New Yorkers we serve."

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