New York City’s council has passed legislation that would effectively end qualified immunity for police officers in cases of excessive force and unreasonable searches, making it easier for people to sue individual officers.
So-called “qualified immunity” policies shield on-duty officers from being held personally accountable in civil rights lawsuits if their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known”. The legal concept, which dates back to 1960s’ court rulings, often creates an insurmountable barrier for those seeking to hold officers accountable. The plaintiff would have to find existing case law establishing that what the officer did was unconstitutional. Then even if they found such cases, they would have to establish that it was so clear that any reasonable police officer would know they were violating the policy by the actions they were taken. Pretty tough to do except in the most extreme circumstances. The officers would routinely get cases dismissed arguing qualified immunity and acting upon their “good faith” belief that their actions were not prohibited by law.
The New York City legislation “would end qualified immunity for police officers in New York City by creating a new local civil right protecting New Yorkers against unreasonable search and seizures and against excessive force and ban the use of qualified immunity, or substantially equivalent immunities, as a defense”, the council said in a statement on Thursday. It means that qualified immunity could not be used as a defense when residents sue a police officer under those local city statutes, rather than federal or state statutes, where qualified immunity still applies.
Mayor Bill DiBlasio is expected to sign the bill into law, but will likely face vocal opposition from the PBA.
Normally, the City would have to indemnify and pay for any damages against the individual police officer. It will be interesting to see if State legislators try to amend the indemnification law to end City payment of officers’ damages to try and protect the municipality from exposure to these new level of judgments.
This bill is a big deal. The City has often led the way in expanding Civil Rights protection which has then been picked up by the State and then other governments around the country. For instance, the NY City Human Rights Law was the first to allow claims of discrimination or hostile work environment based on sexual orientation and also allowed claims to proceed even if a plaintiff could not prove that the discrimination or harassment was “severe or pervasive.” The City law was also among first in the nation that prohibited discrimination based upon a person’s hair.
For decades, police reform advocates have been pushing for an end of qualified immunity. Calls for reform reached a fever pitch after the death of George Floyd last summer.
The House has recently passed a similar bill to end the qualified immunity defense in Federal civil rights lawsuits, but that bill will likely not pass the Senate. This City law will also not apply to prosecutors who enjoy absolute immunity for issues arising out of their actions in court and qualified immunity for actions taken as investigators.
The question becomes if this bill is signed into law, will the NYS Senate and Assembly take up a similar bill which would apply to State Police and other State law enforcement officers. In the meanwhile, when this law comes into effect, persons who feel their rights have been violated by the NYPD will finally have a place to plead and prove their claims in court.
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