By Bryan Haskins
Recently, the Virginia House of Delegates voted to pass a bill that would strip the protection of “qualified immunity” from law enforcement officers. Thankfully, it was defeated in a Senate committee.
In the Senate hearing, the bill’s patron claimed qualified immunity “had its inception in the Ku Klux Klan.” In reality, qualified immunity was first recognized by the United States Supreme Court in a 1967 case. The justice who wrote that opinion was Chief Justice Earl Warren, who was a former Republican governor of California, and who was appointed to the court by President Eisenhower.
Warren was also the chief justice who wrote the opinions in the civil rights cases of Loving v. Virginia and Brown v. Board of Education. The attempt to link qualified immunity to the Klan is completely false.
Simply put, qualified immunity works best when it gives good officers protection from lawsuits while doing nothing to protect bad officers when their conduct violates a clearly established constitutional or statutory right.
It is a standard of reasonableness. If a reasonable person would not have understood that their conduct is violating a constitutional right, then they are immune from suit. It does not operate to protect officers who knowingly choose to violate someone’s rights. The goal of qualified immunity is to protect the good officer while denying that protection to the bad officer.
We hear repeated calls not to modify qualified immunity, but to eliminate it altogether, and indeed the recent House bill would have done so. We will almost certainly see a similar bill reintroduced when the legislature starts its regular session next January. I believe the wholesale stripping of this protection from all officers is not only wrong but dangerous.
We all want officers who are willing to follow the law, and some form of qualified immunity is necessary to reach that goal. One protection it provides is immunity from being sued for enforcing a law if it is later declared to be unconstitutional.
This is not a case of some concentration camp guard claiming he was only following orders.
Virginia is a Democratic republic that elects its legislators by popular vote, and it requires its officers to obey the will of the people’s elected representatives by enforcing the laws which they pass. Indeed, officers swear an oath to do so. If qualified immunity is completely stripped away, then every officer who upheld his or her oath and enforced a law which is later declared unconstitutional can be sued for enforcing it before it was struck down. This is not about a suit for using excessive force in the arrest or for any other alleged police misconduct. It would be a lawsuit brought simply for enforcing a law the legislature passed. And, to add further insult to injury, while the officer who upholds his oath to enforce the law has to bear the financial and emotional burden of a lawsuit, the legislator who passed the bad law has immunity from being sued.
No one embarks on a law enforcement career in the belief that there is a large pot of gold to be had at the end of the rainbow. For all that they do — for all that they endure — they are woefully underpaid.
If qualified immunity is abolished, then these officers cannot afford to purchase individual insurance policies in an attempt to protect what little savings and retirement they do earn.
The only realistic option is for your local government to spend your money to buy the insurance necessary to give them at least some partial protection from the lawsuits which would follow.
In addition, my prediction is good officers will leave the profession as a result of abolishing qualified immunity. And if they do, then no one will have a right to criticize them, for no man or woman should be asked to risk their lives in a profession that also demands they must further risk their financial destruction simply for upholding their oath.
In the end, it really is this simple: If you want to hire and retain competent, honest, hard-working and ethical officers, then completely eliminating qualified immunity and telling them the job risks financial ruin merely for doing their job is not a solid recruitment strategy. And if you drive away all of the honest, the brave, the ethical and the hard-working candidates, then please realize the job is still necessary, and others will apply.
To my colleagues in law enforcement: Thank you for your dedication and service to the cause of justice — and your unwillingness to tolerate anyone in your ranks who will not uphold your oath to support that cause.
To our representatives in Richmond: I hear you when you say reform is needed. All I ask is that you avoid the rush to “do something” and instead take the time to make sure you are doing the right thing — for all of us.
Bryan Haskins became an assistant Commonwealth’s Attorney in Pittsylvania County in 1998, and served in that capacity until becoming the Commonwealth’s Attorney in 2014.
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