In the months after George Floyd’s murder, state legislators across the country tried to undo a legal doctrine that makes it virtually impossible to sue police officers for violating a person’s civil rights.
Fueled by outrage over the actions of former Minnesota officer Derek Chauvin, the efforts to eliminate ‘’qualified immunity’' seemed poised to usher in a new era empowering citizens who felt wronged by police.
But then, in state after state, the bills withered, were withdrawn, or were altered beyond recognition. At least 35 state qualified-immunity bills have died in the past 18 months, according to an analysis by The Washington Post of legislative records and data from the National Conference of State Legislatures.
The efforts failed amid multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true. Officers said they would go bankrupt and lose their homes. They said their colleagues would leave the profession in droves.
While advocates argued that qualified immunity allows rogue officers to brutalize citizens without paying a personal price, law enforcement officials countered that it protects police from being financially destroyed for the rapid life-or-death decisions they must make on the job.
So far, police are winning the argument nearly everywhere.
Among at least four bills that are still alive, three initially called for a complete ban on qualified immunity. One of these, in Michigan, has since been amended to allow use of the legal defense in many instances. And among the seven qualified-immunity bills that have become law since last year, only Colorado has completely barred the legal defense for officers. Iowa actually strengthened qualified-immunity rights of its officers and Arkansas did so for its college and university police officers.
In New Mexico, changes were made so quietly that many advocates didn’t know that the ability to sue individual officers had been taken out as they testified for the bill.
Stephanie Maez, a former state legislator, tearfully told lawmakers earlier this year in an online hearing how a court granted qualified immunity to an Albuquerque homicide detective she accuses of framing her 18-year-old son for murder.
‘’He was released and vindicated and the real murderers were caught and are serving time,’’ the 41-year-old said of her son, ‘’[but] there has been no accountability.’’
But Maez didn’t know at the time that the bill she was supporting, the New Mexico Civil Rights Act, had been fundamentally altered days before to drop a provision allowing people to sue officers in state court. And new language was inserted that explicitly prohibited an accuser from naming an officer in a state civil rights lawsuit.
Now, she has little doubt why the Democratically controlled legislature — facing heavy pressure from police unions — assented to changing the bill, which was signed into law by Democratic Governor Michelle Lujan Grisham in April.
“If a lawmaker is concerned about police coming out and endorsing their opponent in the next election cycle, they will think twice before they do the right thing,’’ Maez said. ‘’With crime being such a huge issue here, lawmakers don’t want to look soft on crime.’’
Such statehouse battles have become even more important as qualified-immunity changes have stalled out in Congress. The House has passed the George Floyd Justice in Policing Act, which would restrict the use of the legal doctrine nationwide. But bipartisan Senate talks broke down last month.
Police officials say they have a right to assert themselves to retool or defeat bills that they believe might weaken their ability to keep a strong force.
‘’If we are going to improve the criminal justice system, it is not going to be by scaring away the best and brightest,’’ said Patrick Yoes, president of the National Fraternal Order of Police. ‘’All of these attacks on law enforcement are not helping. Quality candidates can take a job anywhere.’’
But these police victories are happening despite strong public sentiment in favor of changing the doctrine. A July study by the Pew Research Center found two-thirds of Americans are opposed to use of qualified immunity by police.
Experts say that new bills are likely to be introduced as most statehouses resume in January. However, because of police lobbying, any successful efforts are more likely to resemble the New Mexico law than the one enacted in Colorado.
‘’It would be better if officers had a little skin in the game, but that’s the nature of legislation,’’ said Barry Friedman, founding director of New York University School of Law’s Policing Project. ‘’It’s too bad, but it’s not always truth and justice. It is often just what’s possible.’’
The debate over whether Americans can sue individual police officers began more than a century ago. An 1871 statue first provided a legal path to collect damages from officers and other government employees who violate constitutional rights. The law was commonly referred to as the Ku Klux Klan Act because it was designed, in part, to protect freed enslaved people from racist government workers.
However, a 1967 US Supreme Court ruling on a Freedom Riders bus desegregation case in Mississippi created qualified immunity, and the legal doctrine was strengthened in subsequent federal decisions, making it nearly impossible to challenge in court.
After Floyd’s death, an eclectic mix of organizations came together to fight for a ban on qualified immunity, from the American Civil Liberties Union and Sierra Club to several libertarian groups including the Cato Institute.
But as dozens of state legislatures took up the issue last year, police responded swiftly with public and private lobbying campaigns.