Last week, we hosted a discussion of a major issue at the forefront of national police reform: whether qualified immunity for police officers should be reformed—and if so, how? Qualified immunity is a defense that government officials—like police officers—can raise in response to civil lawsuits for money damages that are brought for alleged violations of constitutional rights. Under current U.S. Supreme Court precedent, unless an officer violated a “clearly established” law of which a reasonable person would have known—the officer can invoke qualified immunity. National Constitution Center President and CEO Jeffrey Rosen was joined by Gloria Browne-Marshall, professor of constitutional law at John Jay College of Criminal Justice; Leonard Kesten, an attorney who has litigated hundreds of cases involving the application of qualified immunity; and Rafael Mangual, senior fellow and head of research for the Policing and Public Safety Initiative at the Manhattan Institute. The panel unpacked the qualified immunity doctrine, how it plays out in real world cases, and whether it needs reform.
This panel was a partnership with WHYY’s Your Democracy initiative, supported by the Sutherland Family. It was streamed live on October 7, 2021.
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This episode was produced by Jackie McDermott, Tanaya Tauber, John Guerra, and Lana Ulrich. It was engineered by David Stotz and Jackie McDermott.
Participants
Gloria Browne-Marshall is a professor of constitutional law at John Jay College of Criminal Justice and a civil rights attorney who has litigated cases for Southern Poverty Law Center, Community Legal Services in Philadelphia, and the NAACP Legal Defense Fund. Browne-Marshall is the author of many articles and the books including She Took Justice: The Black Woman, Law, and Power, The Voting Rights War: The NAACP and the Ongoing Struggle for Justice, The Constitution: Major Cases and Conflicts, and Race, Law, and American Society: 1607 to Present (second edition).
Leonard Kesten is a founding partner at the law firm Brody Hardoon Perkins & Kestenm LLP and one of the preeminent trial lawyers in Massachusetts. He has conducted over 100 jury trials in the United States District Court and the Superior Court and devotes much of his practice to the representation of cities and towns in Massachusetts and their officials and employees. Leonard is considered one of the leading defenders of police officers as he has developed an extensive expertise in the areas of use of force, the constitutionality of searches, and the right to arrest.
Rafael Mangual is a senior fellow and head of research for the Policing and Public Safety Initiative at the Manhattan Institute and a contributing editor of City Journal. He has authored and coauthored several Manhattan reports and op-eds on issues ranging from urban crime and jail violence to broader matters of criminal and civil justice reform. In 2020, he was appointed to serve a four-year term as a member of the New York State Advisory Committee of the U.S. Commission on Civil Rights.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Gloria Browne-Marshall, She Took Justice: The Black Woman, Law, and Power – 1619 to 1969
- 42 U.S. Code § 1983
- Saucier v. Katz (2001)
- Pearson et al. v. Callahan (2009)
- Gloria Browne-Marshall, Bloomberg Law, "We Must Demand Prosecutorial Reform After Chauvin Sentencing"
- Joanna Schwartz, Yale Law Journal, "How Qualified Immunity Fails"
- Gloria Browne-Marshall, Race, Law, and American Society: 1607-Present
- Screws v. United States (1945)
- James Copland and Rafael Mangual, National Review, "Evaluating the GOP's JUSTICE Act"
- 117th Congress, H.R.1280 - George Floyd Justice in Policing Act of 2021
- 116th Congress, S.4036 - Reforming Qualified Immunity Act (2020)
- Leonard Kesten, Evan Ouellette, and Thomas Donohue, “Testimony of the Boston Police Patrolmen’s Association on S.2820, §10 (Changes to the Massachusetts Civil Rights Act and the Judicial Doctrine of Qualified Immunity),” (July 17, 2020)
- The Massachusetts Peace Officer Standards and Training (POST) Commission
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jackie McDermott: Welcome to Live at the National Constitution Center, the podcast sharing live constitutional conversations and debates hosted by the center, in person and online. I'm Jackie McDermott, the show's producer. Last week, we hosted a discussion of a major issue at the forefront of national police reform, whether qualified immunity for police officers should be abolished. Qualified immunity is a defense that police officers can raise in response to lawsuit seeking monetary damages for alleged civil rights violations. Unless the plaintiff can show that an officer violated a clearly established right, meaning a court already declared similar behavior in a previous case to be unconstitutional, the officer can't be held liable. Our panel unpacked the qualified immunity doctrine and whether it needs reform. National Constitution Center president and CEO, Jeffrey Rosen was joined by Gloria Browne-Marshall, professor of constitutional law at John Jay College of Criminal Justice, Leonard Kesten, an attorney who has litigated hundreds of cases involving the application of qualified immunity and Rafael Mangual, senior fellow and head of research for the Policing & Public Safety Initiative at the Manhattan Institute.
This panel was a partnership with WHYY's Your Democracy initiative supported by the Sutherland family. It was streamed live on October 7th, 2021. Here's Jeff, to get the conversation started.
[00:01:27] Jeffrey Rosen: Ladies and gentlemen, welcome to the National Constitution Center and to today's convening of America's Town Hall. I am Jeffrey Rosen, the president and CEO of this wonderful institution. I'm thrilled to share that today's program is presented in partnership with WHYY's Your Democracy initiative, which is supported by the Sutherland family. And I'm very grateful to Bill Marrazzo, Sandra Clark and Emily Kinslow for their great collaboration in putting this panel together. It's an honor to have you Gloria Browne-Marshall, Leonard Kesten and Rafael Mangual. And I wanna begin this important topic with a very basic question for, for round one, what is qualified immunity? As I understand it from the Constitution Center's crack prep team, it's a common law doctrine that was first recognized in a 1967 case called Pierson versus Ray. The modern test for qualified immunity comes from a Supreme Court case called Harlow versus Fitzgerald in 1982. Which says that you can argue for qualified immunity only by showing that the defendant's conduct violated clearly established constitutional or statutory rights of which a reasonable person would have known, and that that test was further qualified in subsequent Supreme Court cases.
Gloria Browne-Marshall do I have that right and, and please tell us, what is qualified immunity?
[00:02:58] Gloria Browne-Marshall: Well, you've, you've hit the, the four corners of it. It is a court-created doctrine that protects police officers as well as other government employees. And the sense of it was in the beginning ... the 1960s, as you just pointed out, was for good faith and it was assumed that these government employees were acting in good faith. And so therefore, as we moved into 1982, they needed to be shielded from frivolous lawsuits, and that it would be difficult for government employees to do their jobs if they were always worried about being sued personally. And so there's the standard when it comes to police officers for qualified immunity, that if there is a a suit that's brought based on some action that took place ... So in qualified immunity we're dealing with civil cases, not, not criminal cases. And so in civil cases, if this person, a civilian wants to bring a lawsuit against a government employee like a police officer, first there has to be some, some proof, for example for excessive force that's being alleged, that this person, the police officer, a government employee violated the Fourth Amendment.
But the second part that's been the trouble, that's the controversy that has brought us here today I'm sure, is that the clearly established second question of whether or not the police officer in that particular case had been given notice, knew beforehand that what that officer was doing at the time was indeed a violation of constitutional rights.
[00:04:23] Jeffrey Rosen: Thank you. That's very helpful to distinguish the two parts of that two-part test. And to take that second part wo- wo- would a reasonable person have known about it, was it clearly established? That, that is an object of controversy. Leonard Kesten, more about the history of qualified immunity. Common law courts had recognized it in the 19th century. Some of this is arising under a federal statute called the Ku Klux Klan Act, which was passed in 1871 after the Civil War, which has a section known as 1983, which allows citizens to sue state and local government officials. And the Supreme Court clarified this doctrine in trying to figure out how broadly that statute swept. But tell us about the history and then tell us about this two-part test that, that Gloria mentioned.
[00:05:07] Leonard Kesten: Well, his- his- the thing about qualified immunity, historic- historically the, the sovereign was immune. You start with that, you can't sue the government. And then we evolved through statute and through common law that you can. And at the time qualified immunity was created, they're actually expanding the right to sue not limiting. As it's grown up in the last 30 years as it has developed to us it's an issue of fairness. Here's the problem. If you let every allegation go to trial, you, you should not have different results. So you have an incident happens, goes to a jury. That jury says excessive force was used. The identical incident happens. The other jury says, no, it wasn't. It's not ... it's an issue of fairness for the police officers. The, the actual cases that tell them how, how much force to use, do not give true guidelines. So what this says is, what the doctrine basically says is, if a ... A, a reasonable police officer would know that what ... that, that the courts have told him or her not to do this, that's unconstitutional.
And if she hasn't been told, then it's not fair to hold that particular officer liable. That's what it is.
[00:06:17] Jeffrey Rosen: Thank you very much for that clarification. Rafael, you've argued that it's really the second prong of this two-part test that should be reexamined, but I wanna make sure I understand the evolution of it. In 2001, the Supreme Court put a case called Saucier versus Katz, which said that courts should first decide whether qualified immunity was asserted, and then is obligated to determine whether the law was clearly established only if it had found a constitutional violation. So, in other words, first you have to decide, is there a constitutional violation? And only then do you decide whether the law was clearly established. Is that right? How important was that qualification and, and, and why do you think that this second part of the test might be reexamined?
[00:07:03] Rafael Mangual: Yeah. I mean, so, so the Saucier case was subsequently overturned in a case called Pearson versus Callahan. And that's where, you know, I think the rubber really hits the road on this debate. Because as you pointed out, Saucier required courts to engage in both steps of the analysis. Which is to say that they had to decide first whether or not there was an actual constitutional violation, and then they could go on to the second pro- prong of the test. Which was, you know, was that constitutional right that was being asserted here clearly established at the time, such that the police officers could reasonably be found to have been on notice, right? Essentially qualified immunity I think is best thought of as a protection against ex post facto liability, which is something our country has, you know, a, a very long and rich tradition of. It's in the Fifth Amendment with respect to the criminal law, you cannot be held criminally liable for the violation of statute that had not been passed at the time that you engaged in that conduct. This is kind of the civil law counterpart to that.
What Pearson versus Callahan did though, was ... Because of a, an argument in favor of judicial economy it allowed courts, lower courts, to skip the first prong of the analysis and go straight to the question of whether or not the right was clearly established. Because if it wasn't, then it didn't matter whether the Constitution was actually violated because even if it had been, there was no notice and so the police could not be held liable. I've as you pointed out, ha- have, have taken some issue with this. And, you know, I'm sure we'll get to the, the heart of of the question for this debate, which is whether or not qualified immunity should be abolished. But I think that if, if there is a middle ground reform, it's going to be with respect to this particular development in the law. What, what Callahan did was, it allowed ambiguities to exist for much longer than they otherwise would have under the Saucier doctrine.
And, and that's where I think a lot of issues have, have arisen. I, I hope we get a chance to talk about that.
[00:08:53] Jeffrey Rosen: Thank you. That's so helpful on clarifying. And as you just said before Callahan or Pearson versus Callahan, this 2009 case, courts have to decide if an official has violated a constitutional right, even when the official is already protected by qualified immunity. After Pearson, as you just told us, courts have the discretion to avoid that constitutional determination when the official has qualified immunity. So that will be a crucial part of our debate. All right. Well, let's get to the core of the debate, which is why everyone's here. Should qualified immunity be abolished? Gloria Browne-Marshall you have argued that qualified immunity allows officers to escape properly placed personable accountability for their actions. This encourages them to act with impunity. And you've written that this encourages officers to adopt an 'act now and ask questions later' att- attitude when it comes to the use of force. Tell us m- more about why you believe that qualified immunity should be abolished.
[00:09:49] Gloria Browne-Marshall: Well, I, I don't believe it should be completely abolished. I think it should be changed. And the reason why is I began by saying, qualified immunity is what protects government officials ... as well as police officers, because they are government officials, from frivolous lawsuits. So when we're talking about abolishing qualified immunity, is it just for police officers or will it be for teachers? Will it be for social workers? I work for the city of New York and the state of New York, will it be for professors? So when we start thinking about the susceptibility to frivolous lawsuits or any lawsuits and the costs that would be incurred in trying to defend those lawsuits, I wanna think about what qualified immunity means when it comes to law enforcement. And the reason why we have a, a major concern today is, is not just George Floyd ... even though that was a flash point the murder of George Floyd by Derek Chauvin, it was the idea that we never get into court. Whether or not it's criminal litigation that needs to take place with prosecutors or civil litigation, how can we get to the point where we can reasonably say, this officer should have been aware?
Even though it seems like based on the standards of decency officers should be aware of these things, how can we say under law that an officer has been given reasonable notice when the officer is not brought to court to actually explain why the officer did what he or she did in that particular time? Because qualified immunity prevents the action from going forward in civil cases. And then on the other side of this we have ... and it's not just me, but many people are looking at this sense of, even when judgments are paid out ... and in, and in New York, for example, $200 million roundabout is paid out per year in these civil judgements, the officer is not paying a price, you know, personally. Now, so the officer has not explained why this behavior was nec- necessary, why this force was used and the officer is not paying out-of-pocket one way or the other. And so what's, the, the disconnect is ... that's taking place, is that the officer is not seen as having to actually change the behavior.
And in not changing the behavior, it seems to support that the officer is shielded ... as Justice Sotomayor said, that the courts have, have given officers almost an absolute shield to to protect their behavior. And so accountability, the perception by the community and the cost of, of what we're seeing in the use of qualified immunity as it stands today, is one of the reasons why I think it should be greatly amended.
[00:12:18] Jeffrey Rosen: Thank you very much for that opening intervention. Leonard Kesten, you've argued that qualified immunity should not be altered at this time. You testified at the Boston Police Patrolmen's Association on proposed changes to the Massachusetts Civil Rights Act. And said that under the changes this would create a vehicle for litigants to bring claims in state courts resulting in a flood of state court litigation. And also that qualified immunity lets the police know what the law is, which is crucial for them to do their jobs. Tell us more about why you think that qualified immunity should not be abolished.
[00:12:52] Leonard Kesten: Well, first I don't ... Support no abolishment. There's a change that I would like to see that we all would like to see. Which is, the, the Supreme Court, once they abolish the first step, what, what ... the first step, which is having the court decide whether this particular conduct is constitutional or not. Now the courts don't have to do it. They just say, "We're not gonna decide." The, the ... Everybody, everybody, all citizens or anybody in this country should know what the rules are. And that is the, the issue about when you pass a law, if the law is vague, the law will be stricken because the ... you don't know that you're breaking it. Likewise, the qualified immu- immunity doctrine means that the poli- a reasonable police officer should have been aware that this is illegal. The ex post facto analogy, which I completely agree with, is ... what this says is, we're gonna change something. If we're gonna create a new wrong, you can, we're not gonna hold that office [inaudible 00:14:15].
So the change I would like to see is to, is to change the Supreme Court rules, however we would change it, that in every case where qualified immunity is decided, the court has to speak to the constitutional or unconstitutionality of the alleged action. They can't just skip it, and that will give everybody a guideline. As to accountability that Ms. Browne-Marshall said, here is [laughs] the problem. The people pushing for changing the qualified immunity, the last thing they want is that the officers won't be indemnified. They do not want to get judgements against the individual officers and not be able to collect them. So the notion that this will change accountability 'cause the officers will [be sued 00:14:56] individually, in in certain ... I practice in Massachusetts. Virtually all officers are indemnified, either by insurance companies or by the cities and towns. So if they're sued individually and lose, somebody else is still gonna pay. And, and that's what the plaintiff's bar wants. The last thing that the folks who are arguing to abolish qualified immunity want is to say, no qualified immunity and no indemnification, because they want to collect the money.
So the, the, the, the concept that this will change the world is not really true. Qualified immunity applies to a tiny percentage of police cases. There, there is no bar to litigation. We have tons of litigation, many times appropriate, most of the times not. You know, there are times when they ... that somebody did something wrong, but it, it does not apply. It does not bar anybody from, from bringing a lawsuit. And it doe- it's, it's not an impediment to lawsuits. We have the lawsuits, people have the right. And the strength of our country, as I tell every jury, is that, you know, I may represent the city of Boston being sued by a pro se person without a home, everybody has an equal shot. And I always say, just remember the police officers, they just wanna know what the rules are, and that's what qualified immunity does.
[00:15:44] Jeffrey Rosen: Rafael, as, as you said, you have a nuanced position about qualified immunity. And one of the arguments you've made is that the idea that qualified immunity allows law enforcement to violate rights with impunity, is undermined by lots of high-value judgements and settlements with police departments that have played out recently. And you've cited a whole series of those settlements, which suggests to you that police escape liability because of qualified immunity less than expected in just 3.9% of cases. Tell us more about that study and why you think that qualified immunity is not the central reform that nee- needs to be adopted, although you do support some refinements of it.
[00:16:26] Rafael Mangual: Yeah, that's exactly right. I think there's some mechanic- mechanical problems with the, the case often made against qualified immunity on public policy grounds. Which is to say that, you know, the idea that qualified immunity is actually feeding a sense of immunity within police officers that, you know they take with them into the field and misbehave as a result of that ... of a lack of, of, of personal accountability, personal financial accountability, I think is wrong. And as you pointed out, one of the reasons I think it's wrong is because there just isn't a ton of empirical data supporting that theory of the case. The, the, the study that you alluded to is a study done by Joanna Schwartz which is published ... She's a UCLA law professor, very brilliant. One of the foremost leading scholars on qualified immunity. She published a study in the Yale Law Journal in 2017, analyzing al- almost 1,200 cases filed against state and local law enforcement officers under section 1983 of Title 42, which is where qualified immunity comes into play. And what she found was that qualified immunity could have been raised as a defense in 82.8% of the cases.
However, just 3.9% of those cases in which it could be raised as a defense was there a dismissal or grant of summary judgment in whole or in part on qualified immunity grounds. Which, you know, I think undermines the claim that qualified immunity functions as an effective bar to recovery some significant amount of the time. Also in New York city, there's a, an, an interesting database that was compiled and launched by the Legal Aid Society a couple years ago. And it looks at federal lawsuits filed against the NYPD in both the Eastern and Southern districts of New York between January '15 and 2018 ... And June of 2018. And, and that database contains almost 2,400 lawsuits. And if you filter those entries by case disposition, by outcome, there are just 74 of those nearly 2,400 that were resolved in favor of police defendants. So even if all 74 of those cases were actually decided on qualified immunity grounds, that would mean that the doctrine only proved to be an effective bar to recovery in just 3.1% of those cases. Now, it is possible that you could turn around and say that qualified immunity is preventing some unknown number of cases from being filed.
There's just really not a lot of empirical evidence to support the idea that there would be some additional flood of litigation following the abolition of that doctrine. I would point out that there was an interesting law review article published in the Harvard Law Review in 1969. And it looked at cases filed under section 1983 of Title 42 and found only 19 cases in the first 65 years of that statute's history. And it wasn't really until Monroe versus Pape was decided in 1961 that you started to see a big flood of, of litigation filed against police officers. Now, you know, as you said while I don't support the complete abolishment of the doctrine, I do think there's an opportunity for a middle ground reform. And it's very much along the lines of what Leonard just suggested, which is that, you know, you can legislatively overrule Callahan and reinstate the test in Saucier. Which is to say that you can legislatively require courts to engage in both steps of the analysis.
And what that will do is, it will more quickly shrink the scope of rights that are not, quote, clearly established, so that you have fewer and fewer instances over time in which police officers can, you know, essentially claim ignorance. And I, I do think there's some evidence to support the complaint that the second prong of, of the qualified immunity analysis has, has been abused. Which is to say that courts have engaged in kind of these weird idiosyncratic instances of line-drawing that, you know seem not, not so good in, in terms of accountability. But that, again, I, I, I think that the idea that police officers are walking around with a sense of immunity because of QI, because of qualified immunity, is wrong. Both because it's not often used as an effective body of recovery, but also as Leonard pointed out, 99.98% of all the dollars recovered against police officers ... That is when they're successfully sued those, those dollars are paid pursuant to indemnification clauses. Those, those, those, those monies are paid by the government.
So even if you got rid of qualified immunity today, there is nothing suggesting that anything would happen to the practice of indemnification, which means that police officers still are not going to be the ones paying out of their own pocket. Which, you know, is, is not really where the money is. I think most plaintiff's lawyers know that. The, the other thing I wanna point out here too is one last point, which is that I think one of the reasons we're having this debate is, because over the last several decades, there's been a move to constitutionalized civil torts. Which is to say that a lot of, of, of alleged police misconduct has a, a, a civil tort counterpart. However, a lot of those cases are steered by plaintiff lawyers to section 1983 of Title 42. And I think the reason for that is, is because under that statute you can get trouble damages and you can recover attorney's fees.
Which is to say that you can stand to recover more money if you succeed in a 1983 case versus, you know, a, a, a, a civil assault and battery case or a conversion case whatever the case may be.
[00:21:21] Jeffrey Rosen: Thank you very much for that and thanks to all three of you for such thoughtful interventions. I wanna ask now whether there's any chance that the US Supreme Court might choose to reconsider this Callahan test on its own. Justice Thomas in 2020 argued for limiting qualified immunity. And, the case was called Baxter, and he offered two critiques. First he said that both of the tests for qualified immunity, bo- both now outdated good faith immunity standard and the current standard, which we've been discussing, should a reasonable person, a reasonable officer have known that there was a clear, constitutional violation, he said that lacks a foundation in the common law. And Thomas argues we should return to the approach of whether ask- asking whether immunity was historically accorded to the relevant official in an analogous situation of common law. And second Thomas said the court had improperly expanded qualified immunity to a hospital superintendent, university presidents, state executive officers, National Guard members. And he, it appears, would limit the scope of qualified immunity using history as an approach.
Gloria Browne-Marshall, would, would Thomas's approach address this reform that several of you have been embracing, of requiring courts to decide whether there was a constitutional violation first, before deciding whether a reasonable officer should have known about that? Or is he simply talking about narrowing the scope of officers to which qualified immunity would apply?
[00:22:52] Gloria Browne-Marshall: I, I think that that's part of the problem that, that Rafael and, and, and Lenny have raised. Lenny, if you may ... if I may have raised. And that is the Supreme Court because most of them are, are not in their background criminal attorneys or have practiced law, come with philosophies and theories that may or may not be what's necessary to fix the problem. So in theory it sounds great but in, in practice, we'll see. It was Justice Sotomayor, who actually practiced law, and has said re- repeatedly that it's necessary for us to actually have a sense of how this is going to be put into practice. And so I could see Justice Thomas's theory being put into practice but also being refined as the practice takes place. I want to, if I could very quickly, go to something that Rafael addressed. And that is, I'm gonna go use one of my own books and I'm, and I'm reading, Race, Law and America society. And I'm going back to a January 23rd, 1943 incident.
The reason why there have not been more cases brought using the civil rights statute is because the case of Screws versus United States in which people of African descent were, ... and have been over much of this nation's history, abused by police officers with impunity. And that is why the, the 1871 statute was enacted in the first place, was because it was the federal officers or federal, ... in Congress, they knew that the federal laws would be protective of these newly freed Africans and the state courts would not, and that state prosecutors would not bring the criminal actions. And so it is in the case of Screws versus United States that we see a black man who is brutally beaten and dies from his injuries by police officers. And then this case that's brought later goes to the Supreme Court. And the Supreme Court then wrangles with the, the 19 83 version of the Civil Rights Act under the 1871 federal statute, to say that it's still not protective of a black person's rights.
And so that's, that, that since this, after this has happened, waiting for the federal government itself, the Justice Department or others to bring these actions, has meant that instead of using 1983, until we can get later ... until the civil rights movement starts, thinking about the 1960s. And you started thinking about more black people who are going to law school learning about civil rights laws and, and the approach now to protecting of rights has expanded. But that 60-year period, there's, there's a reason why there's, there's, there's such a, a a small number of cases being brought. The other part of this I wanna raise is, we keep talking about money and whether or not the plaintiff's counsels are going to be paid and, and how much the damage award is going to be. But we all know as attorneys that people want their day in court, and this becomes a primary issue. So, a- and this is something from an empirical standpoint that really hasn't been the focus of, of determinations by studies. People generally want their day in court. And the fact that they are denied that because of qualified immunity makes it appear as though ... and that's why I said, the appearance is that, that law enforcement is acting with impunity.
Because when you think about this sense of, of what is reasonable notice ... so you can have someone at four o'clock in the morning who approaches a police officer staggering from side to side. The police officer believes this person is drunk. There is an encounter between the two. It's found out later after the police officer uses what's considered to be excessive force that's being alleged, that the, that the civilian was diabetic. Okay. So now the question is, well, would a police officer know that a civilian was diabetic at four o'clock in the morning ... excuse me, in the dark? And then they say, well, he wasn't given reasonable notice because the only other case involves a person, it was two o'clock in the morning and the person was mentally ill. And the police officer used reasonable force, was considered to have used reasonable force because they weren't on notice that ... you know, that, that the difference in facts can be so minute that that means that the notice standard has not been met. And this happens time and time again.
The appearance then to the community is that police officers are getting away with murder based on one slight change in the fact, to say that they didn't know under those facts situations that this would be a violation of constitutional rights.
[00:27:17] Jeffrey Rosen: Leonard Kesten, first I'll ask you the, the Justice Thomas question. Would, would his proposed return to an originalist understanding of qualified immunity, a common law, simply narrow the scope of officials to which qualified immunity applied? Or would it also address your concern about having the court rule first about whether there was a constitutional violation, before deciding whether the right was clearly established? And then maybe a response to, to Gloria Browne-Marshall's points that the accountability requires looser standards for qualified immunity.
[00:27:49] Leonard Kesten: As to Justice Thomas, I mean, if, if, if the Supreme Court does the change that I suggest ... Rafael and I suggest, they can do that. I don't think there should be a huge sweeping change because then you have a whole new time of ju- jurisprudence. Which, which then tells the officers, tells the citizens, it tells the residents of America what the rules are, new rules. I don't ... the, the qualified immunity does not bar the courtroom to people. In almost every civil rights case, in almost every case the question, if there's a fact question that's determinative ... that is I'll give you one that we, we had, which, which ended up in the, in the First Circuit on qualified immunity. An officer says that the gar- the automobile containing the plai- the driver and the plaintiff passenger was ... pointed at him, drove at him and he fired and killed the driver. The passenger said the car was not driving at him and was perpendicular to him, was not moving. He just went up and shot the driver. I, we had tire marks, lots of evidence that, that her, that version was simply not true.
But the First Circuit said, "No that's a fact question." A jury is they're gonna have to determine who's telling the truth. And so the jury determined that in, in fact the, the driver was driving at the officer. And the judge then, he said, "Qualified immunity." I was frankly upset. 'Cause I think the, ... I had said, the officer just did ... what he did was legal, but the judge didn't want to. So he said, "I'm not gonna decide [inaudible 00:30:41] has qualified immunity." So we won, but in almost all cases it's a fact question. Somebody says, "The officer went up to me and punched me in the mouth for no reason," a clear constitutional violation. And the officer says, "No, I didn't. This, all this happened." That goes to a jury. The only time qualified immunity happens is if the facts ... you have to accept the facts in the best light to the plaintiff, the person suing you. You look at those facts and say in their best light, do they have, have they alleged a constitutional violation? That's what you look at.
And look, whether there's qualified immunity or not, it's something called summary judgment. You look, you ... That's what the courts look at. Those are the cases that don't go to a jury. But if somebody, if an officer clearly viola- violates ... you say the officer clearly violates your civil rights, then that officer is going to a jury to decide what the truth is.
[00:30:08] Jeffrey Rosen: Rafael, just, just before leaving this point, I, I, I wanna make s- sure I understand it. My ... As I read Justice Thomas's dis- dissent from denial of [judiciary 00:31:40], he would not address the proposal that you and Lenny are proposing. So my question to you is, do you see any prospect on the current Supreme Court, that a majority of justices might embrace the reform that you both recommend and require courts to rule squarely on the constitutional violation before reaching the question of whether the reasonable officer should have known about it? And then tell us about the proposed legislative solutions that are on the table, ranging from the federal proposals, which would eliminate qualified immunity as a defense for law enforcement. That's justing in police ... the Justice in Policing Act, or the Ending Qualified Immunity Act to the Reducing Qualified Immunity Act. You can see there's a range of proposals. And then 25 states have considered some form of qualified immunity legislation since Floy- George Floyd's death. Do any of those proposals address the reform that you have endorsed or not?
[00:31:13] Rafael Mangual: So to the first question. I mean, I'm, I'm not, certainly not an experienced court watcher and, and don't have a crystal ball here. But I, I think it would be highly unlikely for the court to overrule itself on this point yet again, after doing exactly that in Callahan so soon after Saucier. So I, I ... that would be a, a particularly unusual development. It's not something that I would encourage people to rely on. And also, you know for what it's worth, I think that these kinds of, what are essentially public policy changes, ought to be done in the legislature anyway. And so I do think that resorting to a, a a legislative reform approach is probably the best way to go here. With respect to the proposals that are already on the table you know, none of them really hit this question square. I do think it's really interesting that a lot of state and, and ... states and cities around the country have taken it upon themselves to build out workarounds for qualified immunity. That, that would allow you know, plaintiffs to, to sue for civil rights violations without having to, you know, get over the hurdle that qualified immunity might present. I think it will be interesting to see what happens.
Colorado was one of the first statewide jurisdictions to do that. We don't have any data on, on what police litigation looks like in the wake of that change. But I have not seen any indication that it is somehow exploding. I think the reason for that is again, because it's not, it's not qualified immunity that is denying people their day in court. The data just don't support this argument. In fact, I would go so far as to say that the, the development of more stringent pleading standards over the last 100 years probably do more to keep plaintiffs out of court than qualified immunity does in, in, in these kinds of cases. I'm thinking here of, you know, cases like Twombly and Iqbal. So, so I, I don't think any of these proposals actually get at, you know, what Leonard and I have, have kind of been pushing for here. And so, yeah. I, I do think that what needs to happen is a just legislative overruling of Callahan and reinstatement of the test in Saucier.
It's not, you know, unheard of, right? That's ... The, the, the Congress has in, in past instances essentially overruled Supreme Court cases through legislation. Employment Division versus Smith comes to mind which led to the, the Religious Freedom and Restoration Act. So, so Congress has the authority to act here. I think if it does that, it will send a clear signal you know, that, that qualified immunity is something that will die on the vine eventually as it is starved of, of the kinds of instances in, in which ... you know the kind of ridiculous line-drawing that we see in the second part of the analysis is going to be much less likely to happen and, and much harder to justify as the scope of rights that haven't been clearly established shrinks over time. And that's where I really think the focus needs to be. I, you know, one of the reasons that I brought up that, that 1969 law review article, you know, was not to, to suggest that you know, 1983 doesn't actually provide the relief that, that people say it does.
But, you know, only to help contextualize the fact that we didn't really see a lot of litigation around this idea of, of qualified immunity until, you know, the, the late '60s. And then of course, in, in the '80s with Harlow. But I do think i- it's important you know, to have something in place that police officers can avail themselves of ... and not just police officers, but all state actors can avail themselves of when there is a true shift in the law that was not really foreseeable. One of the cases that comes to mind here is Miranda. I don't think any police officer in, you know, 1962 would wa-, you know, would have thought that, you know, the Constitution's Fifth Amendment required them to lay out this particular incantation of, of rights to to people that they were arresting. It wasn't until that case came down that you would violate the Constitution as a police officer for failing to, to read someone his or her Miranda rights. And, you know, to, so to hold a police officer liable for failing to do that prior to that decision coming down, I think would have been a little hard to swallow.
And I, I do think Leonard makes a good point here, which is that, you know if in fact what you want to do is get rid of qualified immunity in order to increase the likelihood that a police officer will have to pay out-of-pocket in order to ensure accountability, you'd also have to get at the indemnification thing. But even if you got at both of those things and you got rid of widespread indemnification practices, you got rid of qualified immunity, I think what we'd see there is a real problem in the sense that, you know, I think it would be very, very hard for, for individuals to justify pursuing a career in law enforcement at that point. And, you know, a- at a point in our country where we're seeing crime move in the wrong direction, I don't think that's a very good thing.
[00:35:37] Jeffrey Rosen: Gloria Browne-Marshall, I'd love your thoughts on the legislative proposals that are on the table, both state and federal. First, whether you a- agree with Rafael that Congress should require the court, first to consider whether there was a constitutional violation and, and o- overturn Callahan. And then do you support any of the federal proposals from the Ending Qualified Immunity Act to the Reforming qualified immunity Act? And then picking up on the state responses, Wesley Skogan asks, you know, how is qualified immunity being legislated by the states Colorado in the wake of George Floyd's death, and now allows officers to be sued under a new civil action for deprivation of rights? New Mexico has eliminated qualified immunity as a legal defense to state claims. Are there any of that, those state models that you find appealing?
[00:36:28] Gloria Browne-Marshall: Well, I think as I said before, a lot of this, when you go from theory to practice, we'll see how it actually goes forward. And, and I don't completely disagree with, with, with Leonard or Rafael about changing the, the, the standard in how qua- qualified immunity would be used. The sense of it is that, that the civil courts and the Civil Rights Act is the secondary source of accountability that most people are forced into. Because the criminal justice system has failed many people when it comes to excessive force cases. And, and and in civilian deaths but ... at the, at the hands of law enforcement. And so I think that there is within, for example, the George Floyd Justice in Policing Act the, the focus is on qualified immunity. But what it lacks is the, the need for criminal litigation. That officers need to be brought to court and have to through a criminal case explain why they behave, how ... why they thought their life was in danger. Why force was needed at that particular time and why that level of force. And because there's not a, a, a criminal consequence for many people, they're trying to squeeze into civil court that ... the sense that justice has to take place.
Their loved one has been injured or, or killed and they do not believe that police officers are being held accountable for it. And we're not ... That's the elephant in the room. That's not taking place, the accountability in criminal court. And so the sense that they're going and having these civil judgments that come, come out of the jurisdictions tax base becomes this, this issue of debate that we're having right now. I think the, the fact that we have 18,000 police jurisdictions, national legislation is going to have to be the, the type of, of answer to the problem when it comes to qualified immunity, as well as prosecutorial discretion. This, the sense that people have to have some sense that law enforcement is not acting with impunity ... and that there is some idea that police officers can be held accountable at this point, that that sense of accountability is that it's strained at the, at the very least. And at the, and at most we hear, "Defund the police." I don't think the police officers should all be defunded.
And yes, even when crime was, was decreasing, the, the budgets for police departments continue to rise. And yes, there's been an an uptick during the pandemic in crime. But then there's this sense, the trigger is from 1871, was the racial disparity in criminal justice and the racial disparity in policing. And, and I'm going to raise this one last point that we have not talked about. And that is the fact that law enforcement for the most part in this country's history has not had national reform at all. And so, because it has not faced national reform that takes into account the race-based nature of criminal justice in this country, we are doing piecemeal what needs to be done in a national through national legislation. And so even if you have a progressive prosecutor here ... you have Colorado, Connecticut New Mexico, New York, changing its, this way that it is using qualified immunity when it comes to police officers, there's still the sense that the race-based nature of policing has not been addressed.
[00:39:54] Jeffrey Rosen: Leonard Kesten Gloria Browne-Marshall has just called for a national reform. This is not an entirely partisan issue. The Reform in Qualified Immunity Act, which is sponsored by Senator Mike Braun, a Republican of Indiana, will eliminate qualified immunity for all public officials. But includes two safe harbor provisions, granting immunity if a defendant can show prior statutory or judicial authorization of the actions in question. Is there any chance in this extraordinarily polarized environment, that a national qualified immunity reform could pass on a bipartisan basis? And if not let's dig in on a state level. Tell us what's going on in Massachusetts. You, you testified against the elimination of qualified immunity. But my team tells me that Massachusetts has decided that if a newly established right deems that an officer is not fit for duty and poses a danger to the public, then the officer's certification is revoked and they're stripped of immunity in civil cases. Is that right and do you think that's a good idea? How is that working in Massachusetts?
[00:40:55] Leonard Kesten: Nothing's working yet 'cause they have to build up the infrastructure. But yes, they, they, the Police Reform Act was passed. And one of the central tenants is that it basically created a statewide Internal Affairs. It's called the POST Commission. I forget what it stands for. But each, each officer in Massachusetts has to be certified. We have an extensive training requirement for police officers in Massachusetts statutorily. So they go through academy, they go through refresher. So that's really, that's not an issue we don't think in Massachusetts. But they'll be officially certified. All complaints against police officers will be sent to, to this commission as opposed to being investigated internally. I mean, they can be also, and will be, investigated internally, but there'll be a statewide database. And if the commission decides that the officer did something wrong or really bad, then she can be de-certified. And if the commission de-certifies the officer, that officer cannot be a police officer anymore. So it's basically an oversight on internal, local internal affairs, is the way I see it. How it plays out, you know, I mean, this is ... ha, you pass legislation, and you always, should always think, how is this going to play out?
Because we have collective bargaining issues where, you know officers are entitled to ... a lot of public officials are entitled to arbitration of these things. They can't just be kicked out, so how the interplay will work. But tha- that part I was not testifying against that part of it. You know, I don't see that as a, as, as a major issue, as long as it works fairly. You know, police officers ... and I always talk about this. You know, whe- when, when I used to be in corrections, I was a counselor but I also had duties of enforcement. And with those trouble at, at the facility I worked at, I had to go. If there's trouble on your street, you call 911 and you lock the door and you don't have to deal with it. And these men and women we send out there and i- it's an especially dangerous environment now with the proliferation of weapons. And the officer could be shot at any time by anybody. And we send them out there and they do have to make these, these split-second decisions. And 99.99% of them try, are trying to do the right thing.
So yes, there needs to be oversight but you have to recognize what they have to deal with. And, and, and Gloria, qualified immunity ... Racism is a major issue in this country. There's no question, it always has been. But qualified immunity does not address that. So we shouldn't combine them and say that somehow if you eliminate qualified immunity, that, that will combat racism. It will not. But what you are doing, what has been happening is, we're losing a lot of good people in law enforcement because they feel they're under attack. And people, I mean, when people suggest that, you know, if you make them ... you do something that like somebody later, a jury determines you shouldn't have done, you can lose your house? People are gonna sta- "I'm not gonna stay in this, in this profession." You know, 'cause i- if they do something egregious, of course, if they do something criminal, of course, we have a very progressive district attorney here who's about to become a progressive US attorney and she has taken that on.
And, you know, there aren't that many. The, the criminal actions you, you get, again, we've seen in our state are for overtime abuse. But in terms of criminal actions for excessive force, it's very rare when their conduct rises to that, certainly in Massachusetts. I can only speak to Massachusetts, that's where I practice. And I've handled I would say thousands of these cases and you know, you don't see it.
[00:44:32] Jeffrey Rosen: Thank you for that and thank you for answering Ed Grossman's question; will a qualified immunity reform, impact individual's willingness to serve as police officers, including officers of color? Rafael any chance of bipartisan national or state reform on this issue? This conversation is just, there, there is bipartisan agreement and there are bills proposed by folks on both sides, but a pretty, pretty rough climate to pass bipartisan legislation. Any, any chance of it, and what would that look like?
[00:45:03] Rafael Mangual: Yeah. A- a- again, you know, with the qualification that I'm, I'm not very good at, at predicting political outcomes, I, I don't think it's very likely that you're going to see a bipartisan bill come out of Congress. I think at this point with, you know, the, the midterms fast approaching this is going to remain a live issue there. And one of the reasons for that is probably because there's a lot less pressure on them to act, in part because states had been so active on this front. We've seen so many states and, and cities around the country en- engage in all kinds of police reform. The New York Times reported a couple of months ago that since the, the murder of George Floyd 30 states had ... or 40 states had passed more than 130 different police reforms just in, in, in the year that followed that. And so I think there's, there's gonna continue to be quite a lot of movement at the state level. Not just on police reform generally, but on, on qualified immunity. But I, I just wanna, you know, point out that, you know, there seems to have been kind of a shifting of the goalposts here.
Because again, what, what brought us to this debate were controversial police uses of force, and immunity was tied to that, in so far as it was claimed that the existence of that doctrine instills in police officers a sense of immunity that drives their misbehavior in the field. Now it's, you know, the, the case has kind of shifted to, well, qualified immunities exist [in tier 00:48:41] drives a public perception that police aren't being held accountable, and that's important too. Even if the, the, the empirical reality undermines that case. Now just, you know, again, I, I, I want to be very clear, I don't think that there is a strong case to be made that qualified immunity is actually steering a significant amount of police litigation out of court. It's also not clear to me how the, the scope of, of, of police liability will change in the aggregate, should qualified immunity be abolished. And I, I, I think, you know, advocates of abolition, you know, ought to bear the burden of, of making that empirical case out.
Because if all that's driving this is perception, we also, also have to take into account the perception on the other side, and this is something that Leonard just got at. You know, police officers in this country, you know, for, for a while now ... really kind of post-Ferguson, had been reporting in larger numbers that they do not feel like they will get a fair shake should they make an honest mistake while out in the field. And, and that has resulted in a, a lot of jurisdictions in the police pulling back from proactive enforcement activity, that we know from, from empirical research results in, in, in fewer crimes. There's a really fantastic study done by Roland Fryer and Tanaya Devi at Harvard that looked at the impact of pattern and practice investigations launched in the wake of viral police incidents which is to say viral uses of force. And what they found was that when those investigations are launched in the wake of those viral incidents police officers engage with the public significantly ... at significantly lower rates. And that that, you know, seems to correspond to really sharp increases in serious crime.
And so, you know, if, if we are, if perception is what's driving the push for reform, then we also have to take into account perception on the part of, of the one institution that is actually tasked with keeping us safe. And, and that's gonna matter quite a lot.
[00:48:06] Jeffrey Rosen: This has been a wonderfully illuminating and, and really rich debate and it's time for closing thoughts. We always end on time at the at America's Town Hall. So I'm just gonna ask each of you in one or two sentences, if you had to identify a single reform, either of qualified immunity or of policing more generally that you are most, ... that you think is the most urgent to see adopted, what would it be? And Gloria Browne-Marshall, I'll, I'll begin with you. What would your, what would your single reform be?
[00:48:35] Gloria Browne-Marshall: I would take the focus back to the criminal side and say prosecutorial discretion. The reason why Lenny could say, "Well, I just don't see that many cases," is because prosecutors have the discretion as to whether or not they're going to bring a case against a police officer. And so we're, we're seeing cases in which people have lost their lives at the hands of police officers, and yet prosecutors have failed to prosecute or they've prosecuted poorly. Even in the case of Derek Chauvin, the only reason why I have contended that that case ended with a verdict, is because they used outside people, outside of Minneapolis, outside of Minnesota. And they did things that normally they would not have done in a policing case. I think that prosecutors are not prosecuting the way they should. And if that results in ... the changes we're talking about results in a decrease in police officers joining the force ... I, I talked to people many times who are going to join police policing academies. And I know they're good people and they want to help the communities. I don't know what the culture of policing does to them, but I know something is happening within the culture of police. This is something that is race-based, that's been part of this country for well over 150 years.
And our police departments began as slave catchers, as militia that put down Native American uprisings. They then mingled with the [inaudible 00:52:23] and the part of Boston and New York created the police departments we see formally. But we don't talk about this, the other part of policing, which was the, the racist roots in which police officers grew. And so ... or policing grew. And so I think we need to address the race-based nature of policing and that has to be something that's national. The last is perception by police officers, when you say, well, you know, they're, they're going to feel that they're not being respected. There's a celebrity of policing that's going on right now in which we're, we've taken police officers to a higher level than any other government workers. And so we have to remember, they are being paid by our tax dollars. They are government workers. And yes, some of them do very dangerous work, but the majority are people who are working to do government type of bureaucratic jobs.
And when an, when an officer does something that, that is something that's an honest mistake, a person dies. And so as we hold medical personnel responsible, we hold others responsible, we need to hold police officers responsible. Without feeling guilty about holding them responsible for, for not just the perception of, of, of protecting us, but also the sense that they're protecting us without this, this, this shield of immunity. That, that means that they are not going to be subject to the same type of criminal prosecution or a civil prose- or a civil liability that others face.
[00:51:16] Jeffrey Rosen: Thank you very much for that. Leonard Kesten, with apologies for the fact that we, we just have two minutes left. So just, just in a, in a few sentences, if you had to identify a single reform of the police what would it be?
[00:51:28] Leonard Kesten: I think I've addressed ... I, I think I've said repeatedly, the reform of qualified immunity is a topic of
