The Black Lives Matter movement in the past two months has grasped the attention of people all over the world, placing sharp focus on systemic racism which remains so deeply ingrained in modern society and continues to oppress Black individuals. During this, modern functionality of certain laws has begun to raise questions over their legitimacy. One piece of highly contended US legislation is qualified immunity as legislators and politicians are calling for it to be abolished.

“You can try to change systemic racism through behaviour which may take decades or longer, or you can change it through law,” said Kelby Bowman Esq., a US trial attorney who, amongst other kinds of legal areas, has litigated civil rights cases from the perspective of the defendant and plaintiff.

A Brief Context of Qualified Immunity

In the Civil Rights Act 1871, 42 USC Section 1983 provides citizens the right to pursue litigation against police and state actors in federal courts if their civil rights are deprived. However, it also gave police and federal officers certain immunities, now known as qualified immunity. Qualified immunity is an affirmative defence that can be used to shield officers and their employers from being sued for money damages.

The Practical Use of Qualified Immunity

To fully comprehend qualified immunity, the College Tribune spoke with Bowman who provided insight to the doctrine’s practical applications and his first hand experience with qualified immunity cases.

He stated the purpose of qualified immunity is to prevent police or federal officers from weighing the consequences of their actions when attempting to fulfill their duties because “you can never have an effective policing situation if officers were to second guess their actions every time they are required to fulfill their obligations as law enforcement officials.”

But where is the line between weighing the morality of an officer’s actions in relation to the arrestee and what should be considered just conduct in the line of police work? This is a seminal issue being debated along with systemic racism.

In American law, Harlow v Fitzgerald set the modern legal test for qualified immunity. Firstly, the official must have believed their actions were fair in the situation and secondly, the conduct exhibited was objectively reasonable, or standard. The second portion is crucial to understanding the rationality behind why plaintiffs do not succeed in these cases. The standard for behaviour of what conduct is appropriate in situations of alleged excessive use of force is not how the average citizen would react, but rather how the average police officer would. This standard is created so an officer may fulfill his or her duty as long as it does not violate a clearly established civil right.

Bowman stated that typically an officer employed by the police department may have a lawsuit brought against him or her after a plaintiff is injured in the course of an arrest who claims their civil rights were deprived. Most often these officers are ones who have received a number of prior complaints about use of excessive force and or verbal misconduct but he or she is not fired or retained by a different department.

If determined the officer’s actions were those of the average officer, then qualified immunity kicks in and they would be free to go. He stated in his experience, most cases settle and it is rare for a plaintiff to see their case brought to court. He explained this is due to the doctrine being so fact specific and it would most likely be dismissed before any trial takes place. Bowman noted that individual cases are also dependent on the judge assigned.

According to Bowman, “The acts of which we’ve seen in relation to George Floyd, Elijah McClain and thousands of others is that there is a tendency for lay people to look at the actions of the officers criminally, but the doctrine only applies in the civil one.”

There are two ways of holding someone legally accountable: morally, in a criminal suit, but for an individual like George Floyd, his loss of income, his estate and loss of parental guidance to his daughter can only be rectified civilly where the guilty parties are held legally responsible through monetary charges.

Bowman noted that police officers are not criminally prosecuted because, “The District Attorney needs police officers to make their cases against robbers, murders and rapists and if you prosecute officers for their own criminal activity it is less likely that other officers will cooperate in testifying for other cases.”

Bowman noted the relationship between District Attorneys and police is threatened by a “blue wall of silence” if they were to prosecute officers. It was not until there was a push by the public that charges were brought against Derek Chauvin and the three other officers involved in the George Floyd case, as well as the officers involved in the death of Elijah McClain nearly a year ago.

How Does Qualified Immunity Translate in the Irish Context?

Prior to the landmark case of Byrne v Ireland, State immunity was very much present in Irish tort law but that is different from qualified immunity in the US. T. John O’Dowd, a lecturer from the UCD School of Law stated, “There is no direct parallel in English or Irish law, as this is something of an American innovation over the course of the last century or so.”

The Supreme Court decision in Byrne stated immunity from the State was unconstitutional as authority came from the Irish people. Without State immunity in Ireland, public authorities have the potential to be held liable for a wrongful exercise of lawful authority.

Where a breach of civil rights has occurred in relation to Gardai misconduct, the State has granted monetary compensation to the plaintiffs. These cases have not involved excessive force but rather breaching privacy rights or manufacturing false evidence. The use of State immunity in past cases have mainly been directed towards injuries resulting from poor infrastructure rather than any form of police brutality which is where qualified immunity mainly sees its use.

“Given that one can sue Ireland for the torts of its servants there is less cause here to sue individual public servants,” said O’Dowd.

Systemic racism exists in America, Ireland and everywhere else in the world. Racism in other countries may not look the way it does in America but to pretend it does not exist is inherently racist. The lack of an equivalent to qualified immunity does not mean other government systems and laws that disproportionately effect Black individuals and other People of Colour do not exist.

The recognition of qualified immunity as a piece of law that must be abolished should help individuals protesting, donating and signing petitions to demand that laws and systems in place in their respective countries that greatly harm or disadvantage Black, Indigenous and People of Color (BIPOCs) must be reformed or eliminated.

The Fate of Qualified Immunity

“If you ask a legislator who wanted to get rid of qualified immunity, they would probably say the motivation behind getting rid of it is because you can’t trust the hiring practice of a municipality in the first place,” said Bowman. “Human nature is such that if you have any degree of prejudice in your body along with the ability to enforce your will on individuals you will begin to use your power, in conjunction with limited consequences which qualified immunity provides, to act in any manner you like.”

He emphasised the impossibility of hiring a 100% perfect police force, therefore if the US were to get rid of qualified immunity it would provide incentive for police municipalities to adjust training and qualification practices as well as closely examine who enters the force to begin with.

There are two ways to address systemic racism in the US police force, according to Bowman. He explained that systemic racism can be addressed through behaviour modification such as police reform, which takes a long time or it can be done through the adoption of new laws or getting rid of old ones which would more directly address systemic racism. “To get rid of qualified immunity would make police officers think twice about detonating a flash grenade if they knew their employer would be sued for a willful violation of civil rights,” said Bowman.

The Gardai do not carry guns, let alone have a budget that could compete with what US police are granted enabling the purchase of military grade weaponry. Why is it then necessary to protect individuals from a civil suit who can protect themselves from any threat they believe a civilian may pose? It appears civilians in the US cannot ensure their rights are protected in the street or in the court room.

Legislators such as Libertarian Representative, Justin Amash, and Democratic Representative, Ayanna Pressley, aim to strike qualified immunity at its core with a bipartisan bill introduced on June 4th to end the doctrine. Democratic Senator, Cory Booker, introduced a separate proposal with other Democratic Senators calling for Congress to amend section 1983. Bowman said that the Senate bill does not really touch upon eliminating qualified immunity in comparison with the House bill which does.

He further said the latter, “will not make it to the Senate and even if it did, Trump will most likely veto it and that is the issue.” In the coming months, especially with the presidential election in November, the law will become clearer as different parties weigh the importance of maintaining or getting rid of the doctrine.

Danielle DerGarabedian – Law Writer