For Social Justice, End Qualified Immunity

Activism

In the wake of George Floyd’s murder, so many of us are trying to figure out “how can we stop these things from happening”? Unfortunately, the answer is very murky. It’s hard to do anything federally to address local policing, and the general discussions of trying to combat racism and foster understanding isn’t likely to change the mindsets of members of the existing criminal justice system.

There aren’t many things that can be done, at the federal level, that have the chance to make a difference–except this: Justin Amash and Ayanna Pressley are working on sponsoring a bill to end qualified immunity.

The below letter was sent to my House Representative, Katie Porter. I sent the same letter with slight modifications (as they were to Senators) to Senators Feinstein and Harris asking that they publicly support the effort and try to duplicate it in the Senate. I also sent a copy to Rep Pressley, and unfortunately could not to Rep Amash because he doesn’t accept out-of-district communications.

For those of you who agree, and who want to contact your own representatives, feel free to use anything below as a template in your own communications.

Dear Representative Porter,

In the wake of the brutal murder of George Floyd at the hands of police, and the subsequent protests, riots, and continued unrest that followed, many of us are asking “how can we solve this problem?”

Many are hoping that we can find a way to end racism, to end systematic and institutionalized poor treatment of minorities in our criminal justice system, and that we as a society can begin to heal.

Unfortunately, what is missing is tangible solutions. I sincerely hope that we can end racism and heal ourselves as a society. I am doing my best, as a white man and a father, to not perpetuate this behavior in my personal life and to make sure that my children are likewise raised not to be a part of a problem, but to be part of the solution. I worry that’s a generational target that doesn’t help the situation, today, on the ground. It’s worthy goal, but the time horizon is too long. I’ve always believed people aren’t born racist; it’s inculcated in them by the biases of the generations ahead of them. Their parents, their extended family, their community. Very little that I can do to try to raise my own children properly will help avoid racism in those who are being taught wrongly elsewhere. Which makes trying to solve racism, while a wonderful goal and one that we should pursue, too little and too late to help people today.

I believe that most police officers are good people who chose that life because they want to make their communities safer. The problem is caused by a small minority, but the effects that small minority have on the whole are disastrous. I believe those good officers may detest the actions of the bad ones, but feel powerless to stop it for many–completely understandable–reasons. Sadly, the end result is a system that shields the bad apples from the consequences of their actions.

But we CAN make this better. And we can make this better in a shorter term, by changing the incentives that police have TODAY to act badly, and increasing the incentives to actually weed out the bad apples among them.

House Representatives Ayanna Pressley and Justin Amash are circulating a letter arguing that Congress can put an end to one of the key shields the bad actors in our police system hide behind: Qualified Immunity.

Today it’s possible to sue the police department in civil court for excessive force / brutality / wrongful death. But due to qualified immunity–and in particular the way qualified immunity is adjudicated–it is NEARLY impossible to sue the individual offending officer in civil court and have any chance of success.

So while cities may occasionally feel the pain in their pocketbooks due to losing a lawsuit (and it’s just taxpayer dollars anyway), the individual officers are mostly shielded from civil liability.

Now, it can be argued that we don’t want to subject officers to financial ruin because of a lawsuit. As politicians, I’m certain that some of your constituents and supporters, and possibly campaign contributors (police and their union) will argue that this will be the outcome. But that need not be the case, for it’s a faulty argument. The medical malpractice insurance industry already gives us a blueprint to avoid that. By ending qualified immunity but also requiring police to carry malpractice insurance, we create a financial system that incentivizes good behavior and punishes bad, and can be tailored to each individual officer based upon their history and risk profile.

Here’s how I see it potentially working.

  • The police malpractice insurance industry will need to have ways to accurately risk-price individual officers. Much like getting auto insurance, your risk is mainly tied to your own actions, and there are clear red flags that suggest you’re a higher risk (in auto insurance, regularly getting speeding tickets or causing accidents, for one).
  • Those red flags might be things like citizen complaints against officers, IA investigations, history of lawsuits brought, etc. Some officers [such as Derek Chauvin, who had a history of malfeasance before murdering George Floyd] may find themselves eventually priced out of policing due to their risk profile being so bad that they can’t afford the insurance. Want to weed out the bad apples? They’ll price themselves out by their own actions.
  • Officers could possibly qualify for premium reductions by doing things like regularly taking alternative escalation training, community sensitivity courses, etc. You can find ways to reinforce positive behavior and make it in officers’ financial interests to do so.

The only way that I see to improve this system in the short term–at the federal level which affects all departments–is to end qualified immunity. It is within Congress’ power to do so. While this will be fought, I hope that the above will help deflect the arguments which would be used against the bill.

Representative Porter, I ask that you cosponsor Rep Pressley’s bill when it is written, and do everything you can to help it pass.

Thank you for your time.

Brad Warbiany