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Piercing the Shield of Qualified Immunity

In the wake of the nationwide protests after George Floyd’s death last summer, the New York City Council recently passed legislation designed to combat police misconduct by limiting the “qualified immunity” defense for NYPD officers when a civil suit is filed.

Advocates claim that, over the last half-century, the doctrine of qualified immunity has developed into a suit of armor protecting officers in the face of discrimination, harassment, and brutality suits. As it currently stands, to overcome this defense, a plaintiff must show that "clearly established" constitutional or statutory rights were violated. In practice, that entails finding precedent which reinforces that the officer’s specific behavior or response was unconstitutional – a nearly impossible proposition in many instances.

Of course, NYC’s police unions have strongly opposed the bill, noting that the immunity allows officers to make split-second decisions which, in certain instances, could mean life or death. Paul DiGiacomo, president of the Detectives Endowment Association, expressed his displeasure, as follows: "Every bill that they put in is making it more difficult for our detectives and the police in the street to do their job."

Thus far, the statute only applies to police officers and does not extend to other civil servants. It is also specific to New York City and does not address state or federal causes of action – but it is likely to cause a major influx of misconduct claims to funnel through local courts. If signed into law, NYC will be the largest jurisdiction in the United States to eliminate the doctrine.

This change adds to the wave of police reform efforts that have been aggressively sought after since the national protests last summer. Mayor Bill de Blasio has additionally implemented a $72-million-dollar plan for improving police tactics and accountability, including several bills aimed at targeting racial discrimination by officers. One such bill will give the Civilian Complaint Review Board the power to investigate racial bias, while another will require the collection of information on automobile stops, which includes the race of those arrested.

Proponents consider this latest development a step in the right direction, but stress that there is still a need for further reform. Randolph M. McLaughlin, Co-Chair of Newman Ferrara’s Civil Rights Practice Group said, “While this new legislation will assist New Yorkers in obtaining justice for police violence, qualified immunity remains an obstacle in federal court and in other states across the country.”

Whether this bill will actually curb misconduct by officers is unclear. And unless more drastic improvements to police practices are made -- given that New York City already spends around $170 million, each year, on misconduct settlements -- taxpayers are likely going to end up footing a significantly larger bill.

Source: https://www.cbsnews.com/news/nyc-qualified-immunity-police-misconduct/