Rep. Curtis Tarver, D-Chicago, has introduced House Bill 1727 in Springﬁeld. His bill would abolish qualiﬁed immunity for police oﬃcers, and immunity for the governmental bodies that employ them, if the oﬃcers deprive any person of "rights" guaranteed in the Illinois Constitution, or fail to intervene to prevent the deprivation.
So what exactly is this qualiﬁed immunity that presently protects police oﬃcers?
The 1982 U.S. Supreme Court decision Harlow v. Fitzgerald created the rule and remains operative today. Prior to Harlow, a public oﬃcial enjoyed qualiﬁed immunity only if the oﬃcial believed in good faith that his conduct was lawful, and the conduct was objectively reasonable.
But that rule created a serious problem if there was an allegation that the police oﬃcer acted in bad faith. What a person's state of mind was as he acted, is almost always a question of fact. Where a question of fact exists, either party is entitled to a jury trial and full pretrial discovery. The Supreme Court found that these jury proceedings distracted oﬃcials from performing their duties, inhibited discretionary action, and deterred able people from entering public service.
For those reasons, the court fashioned the current rule for qualiﬁed immunity: "We therefore hold that government oﬃcials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
"Reliance on the objective reasonableness of an oﬃcial's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine not only the currently applicable law, but whether that law was clearly established at the time an action occurred.
"If the law at that time was not clearly established, an oﬃcial could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identiﬁed as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed.
"If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public oﬃcial should know the law governing his conduct.
"Nevertheless, if the oﬃcial pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors."
Rep. Tarver's poorly thought-out "bad apple" bill would deprive a police officer who exists to be sent into harm's way of all legal immunities. He could be sued not only for making a mistake, but also for his inaction. And he could be sued, even if he made no mistake, anytime a person he had dealings with believed himself aggrieved.
By the very nature of the job, police officers are the ones who are sent to deal with life-threatening emergencies. The primary purpose of having police oﬃcers is to protect the law-abiding citizens from criminals. In almost all cases, that is exactly what they do.
When a woman calls 911 pleading for police assistance because her husband is beating the hell out of her, it is the police officer who is dispatched. When there is a shooting spree in a school, it is the police officer who answers the desperate call. When there is an armed robbery in progress, when an alarm comes in, it is the police oﬃcer who responds. Even the speeder is stopped by a cop.
Every one of these situations has the potential for escalation — for the responding oﬃcer to be seriously injured or killed. Weekly we hear reports of an oﬃcer being shot or killed while responding to a domestic abuse call, an armed robbery, or a school shooting in progress. Even as they issue speeding tickets.
Without qualiﬁed immunity, every oﬃcer's traﬃc stop, every arrest, every use of force has the potential of seeing the responding oﬃcer facing a jury trial. All that is required is that the aggrieved person makes the allegation that the oﬃcer acted with an improper state of mind. A jury trial will probably follow — even if the allegation is entirely baseless.
The chance of the oﬃcer being sued is substantially aggravated because he is very often dealing with irrational people, major and minor criminals, and people who hate cops.
Tarver ﬁnds the necessity for HB 1727 in the George Floyd case in Minnesota. But Floyd's civil suit was just settled for $27 million, even though the oﬃcer enjoyed qualiﬁed immunity. So what is the necessity to deprive all good cops of their qualiﬁed immunity?
If an oﬃcer has to worry about being sued every time he believes he has cause to arrest, or to use force to stop a bar ﬁght, or ﬁre his weapon to stop a school shooting, why would he act? Why would he even take the job?
John Donald O'Shea, of Moline, is a retired circuit judge and a regular columnist.