The NYPD’s Police Unions Make the Argument for Qualified Immunity Reform

At the end of March, the New York City Council passed city-level qualified immunity reform, allowing civil suits against police officers that violate people’s Fourth Amendment rights, and explicitly providing that qualified immunity is not a defense. And though the law has yet to take effect, it has already provoked a clear response from the police unions that represent NYPD officers, in the form of a letter sent to all their members.

This astonishing letter, though it laments the elimination of qualified immunity, actually makes the clearest and most persuasive argument possible in favor of qualified immunity reform. Its core message is to inform officers that, in the absence of qualified immunity, they will now actually have to avoid violating people’s constitutional rights.

I touched on this letter in my post last week on why employer liability is not an adequate solution to qualified immunity, and Chad Reese discussed it in his op-ed on how “New York’s qualified immunity reforms are paying dividends.” But it’s worth examining in detail, both to identify and correct its misrepresentations about qualified immunity, but also to fully explain how this letter is clear evidence that qualified immunity reform is both effective and necessary.

As a threshold matter, the letter correctly explains the mechanics of how the new NYC law will work, but when it describes qualified immunity itself, it does so in terms that are technically accurate, but highly misleading. Let’s go line by line through the relevant paragraph:

Qualified immunity is a judicially created defense that protects all government employees, not just police officers, from liability.

So far so good. Indeed, I appreciate the union attorneys’ implicit recognition that qualified immunity was invented by the Supreme Court, and they’re correct that it applies broadly to all public officials, not just the police.

Qualified immunity means that government employees are immune from lawsuits if they acted reasonably and not in violation of a “clearly established statutory or constitutional right.” It is designed to protect all government employees and officials from lawsuits and liability when they perform their duties in good faith and within what one reasonably believes to be the scope of existing law.

This language is a mostly correct restatement of qualified immunity doctrine, but it’s highly misleading. In Harlow v. Fitzgerald—the 1982 decision that established modern qualified immunity—the Court held that public officials “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights,” and it characterized this as an “objective” good-faith standard. That’s essentially what the letter is saying.

The problem, however, is that “reasonableness” and “good faith”—in the context of qualified immunity—don’t actually have anything to do with whether the defendant was, in fact, acting reasonably or in good faith. As I explained in more detail here, qualified immunity protects defendants who knowingly violate people’s constitutional rights, so long as there’s not a prior judicial decision in the relevant jurisdiction concerning the same fact pattern. So while courts use terms like “good faith” and “reasonableness” to describe the doctrine, those terms don’t mean what any ordinary person would understand them to mean—which is why the unions’ letter is so misleading.

Unless there is clearly established law to the contrary, qualified immunity protects your good-faith actions and allows you the freedom to make decisions and take action without fear of being sued.

Here’s where the letter transitions from misleading to outright misrepresentation (which, unfortunately, is typical for the law enforcement lobby). The union attorneys are clearly drawing on the oft-repeated refrain that qualified immunity is necessary to protect the discretion of officers to make split-second decisions, without being judged with the benefit of hindsight. As I explained in more detail here, this is simply untrue. The discretion of police officers to “make decisions and take action without fear of being sued” is protected by the Fourth Amendment itself, not qualified immunity.

The Supreme Court has made crystal clear that when police officers make reasonable decisions to pursue lawful objectives, they haven’t violated the Fourth Amendment at all—even if, with the benefit of hindsight, those decisions were “wrong.” Officers who are genuinely acting in good faith aren’t violating anyone’s rights in the first place, so by definition, they don’t need qualified immunity to protect them. By suggesting otherwise to their members, these unions are engaged in reckless, dishonest fearmongering.

With those clarifications and corrections out of the way, let’s get to the key advice that the union attorneys are offering to their members. In this respect, the union attorneys actually demonstrated remarkable candor, as they unknowingly made the single most persuasive argument for qualified immunity reform. Here’s what they said (emphasis in original):

As a direct result of the passage of this law, and the unavailability of the defense of qualified immunity under its provisions, we advise that you proceed with caution when taking any police action which could lead to physical engagement with any person, and avoid physical engagement to the greatest extent possible while also assuring your own safety and the safety of others. Also, you are strongly cautioned against engaging in any stop & frisk (unless doing so for your own or others’ safety), search of a car, residence, or person unless you are certain that you are clearly and unequivocally within the bounds of the law . . . . 

In other words, now that officers no longer have qualified immunity, they actually need to be careful to avoid violating people’s rights!

Consider the incredible implications of this advice. Without qualified immunity, officers will now need to “proceed with caution” when using physical force—were they not already exercising caution to begin with? Without qualified immunity, officers should avoid “engaging in any stop & frisk (unless doing so for your own or others’ safety”)—even though a “frisk” (i.e., a patdown) is never justified without reasonable suspicion that a subject is armed and dangerous. And without qualified immunity, officers will need to be “certain” they are acting lawfully before conducting a search—how much consideration were officers previously giving to ensuring their searches were lawful?

The NYPD’s police unions could hardly have given us better evidence that qualified immunity reform is both necessary and effective. In response to those who have claimed that abolishing qualified immunity won’t alter police behavior (which I discussed in more detail here), well, just look at what happened—police unions are instructing officers to change their behavior before this law even goes into effect. In response to those who have claimed that employer liability is a sufficient alternative to qualified immunity reform, again, read the letter—it is precisely because individual officers have skin in the game (and because indemnification is not guaranteed) that this advice was even necessary.

While I find the lack of self-awareness in this letter to be truly stunning, I’m genuinely grateful to these union attorneys for giving us such clear evidence at such a crucial juncture. States around the country are considering qualified immunity reform, and key members of Congress are continuing to negotiate a “compromise” on the issue, the details of which we have yet to see. We are truly on the razor’s edge, to borrow the title of the Reuters panel I participated in today. If national qualified immunity reform is ultimately successful, it may well be due to the critical—albeit unintentional—contribution of the NYPD’s police unions.