higher education schools reopening covid

Clockwise from top left: NCSL’s Amber Widgery, law professor Rachel Harmon and New Mexico Representative Georgene Louis discussed policing policy at NCSL Base Camp 2021.

Protecting the Protectors? Changes to Qualified Immunity for Police

By Kelley Griffin | Aug. 10, 2021 | State Legislatures News | Print

In the wake of George Floyd’s death, state legislatures have been more involved than ever before in how policing and police misconduct are handled—and that is how it should be, law professor Rachel Harmon said during a session at NCSL’s base camp.  

“This is really going to be a matter that is largely determined at the state level, and I really think it is the future of police reform,” said Harmon, director of the Center for Criminal Justice at the University of Virginia School of Law.

This is really going to be a matter that is largely determined at the state level, and I really think it is the future of police reform. —Rachel Harmon, Center for Criminal Justice, University of Virginia School of Law

Amber Widgery, a program principal with NCSL’s criminal justice program, said that 47 states passed 348 laws on policing reform in the wake of Floyd’s May 2020 death in Minneapolis police custody. NCSL’s policing database has tracked more than 3,000 bills in state legislatures across the nation on topics ranging from use of force, mandatory body cameras, training, investigations and discipline, police officer well-being and policing alternatives.

The panel focused primarily on qualified immunity, a long-standing federal legal doctrine adopted by most states decades ago that protects police from being held liable in misconduct cases unless they knowingly violated established practices. That has been hard to prove in court, and U.S. Supreme Court rulings in the past 15 years have made it even harder, Harmon said.

“This has been a problem over time because it has prevented civil liability from functioning as it is intended,” she said. Civil liability should act as a deterrent to unconstitutional conduct by government officials, as well as a way for victims and their families to be compensated for illegal conduct by the government, she said.

State Actions

Several states, including Colorado, Connecticut, Massachusetts and New Mexico, have banned or limited qualified immunity as part of their police reforms.

In New Mexico, Representative Georgene Louis (D) led the effort to pass the New Mexico Civil Rights Act, which banned qualified immunity and allows citizens to sue in state court over civil rights violations. Louis said the law made the cities or government agencies liable for court monetary judgments, not individual officers or other government officials. It also caps attorneys’ fees and judgment in any one case to $2 million. 

“The Legislature really worked to make sure we were listening to our communities’ concerns about misconduct,” Louis said. “My goal … was to make sure we had a process to achieve fairness, justice and equal treatment under the law for everyone, regardless of race or background.”

Opponents of the bill raised concerns that it would cause financial havoc for cities and towns and make it impossible for them to obtain affordable liability insurance, Louis said.

“Of course, our ongoing message was, the cost is zero if no civil rights are violated,” she said, adding that those concerns did prompt the bill’s sponsors to set the monetary settlement caps.

Louis outlined the state’s extensive process, starting with creation of a bipartisan civil rights commission to explore the issue through several public meetings and write legislation. The commission’s report framed the issues and concerns lawmakers would need to address.  

“We heard so many reasons why we shouldn’t do it,” Louis said. “But even now I’m getting phone calls from strangers in the state thanking me for passing the legislation because of their experiences.” 

Making Municipalities Liable

Harmon said laws such as New Mexico’s that make municipalities liable for the actions of their officers take the right approach. 

“I really do think that communities are in the best position to prevent problems in policing,” she said. “They’re the ones who decide what kind of training officers will have, they supervise officers, they create their assignments, they create the discipline mechanisms. And they are in the best position to ensure that officers are behaving the way they should in terms of what they are doing on the job.”  

Harmon urged legislators and their staffs to look beyond addressing qualified immunity.  

“Efforts to reform police take a variety of forms, including rethinking the proper role of policing in society, and states are probably going to play a role in that, too,” she said. “And then thinking about how to ensure that officers on the streets are responsive to the community and also are protected and able to do the jobs that are expected of them.” 

Harmon said this is a sea change because until now, states have relied on the U.S. Justice Department to monitor police and prosecute misconduct. She said states also need to address the lack of transparency in many police misconduct cases, noting that many civil lawsuits end in secret settlements that leave public officials in the dark about the extent of police misconduct.

“Something legislators could consider is making sure we know how often cities and officers are getting sued, what those suits are about and how those suits are getting resolved,” Harmon said. “That kind of information could inform future legislation and how cities are handling their officers and also inform research. And all of those things will only make us better.”

Kelley Griffin is a writer and editor in NCSL’s Communications Division.

Additional Resources