Chicago, IL

Illinois Legislature Wants to End Qualified Immunity for Police

Natalie Frank, Ph.D.

The Illinois Legislative Black Caucus is spearheading the focus in the Illinois Legislature on ending qualified immunity for police officers and making them liable for wrongdoing that infringes on someone’s rights.

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Credit: Patrick Emerson Illinois Capitol Building on flickr (CC BY-ND 2.0)

Springfield, Illinois The protests incited by the killing of George Floyd have put a spotlight on the legal doctrine of qualified immunity. Qualified immunity is not an issue in the prosecution of former Minneapolis police officer Derek Chauvin and the three other former officers who also face criminal charges in the death of George Floyd. Yet it is one of many structural factors that make it difficult to hold police officers accountable for wrongdoing.

Qualified immunity is a judicially created doctrine that protects government officials from being held liable for constitutional violations so long as the officials didn’t violate “clearly established” law. Qualified immunity allows law enforcement and other government officials to violate people’s constitutional rights without fear of being held accountable.

Today, we hear about one police shooting after another where officers are almost never held accountable by the legal system, because they aren’t charged at all or if they are juries are reluctant to second guess police officers and so they won’t convict them. Qualified immunity essentially removes other avenues that victims of police violence or rights violations should have to hold them accountable for their actions.

Just this week, there was another deadly shooting of a black man by a white police officer in Minneapolis during a traffic stop. Daunte Wright was stopped for an expired license plate then the police attempted to arrest him on an outstanding warrant. Body camera footage shows an officer trying to physically restrain him to arrest him but the man pulls free and gets back into his car.

From the recorder, you can hear the other officer, Kim Potter, saying she is going to tase Wright, but she pulls out her gun and shoots him. Later statements say that she believed she had grabbed her taser.

Potter has resigned, is out on bail, and will be charged with second degree manslaughter. This has set off massive protests in Minnesota and all over the country, including in the Chicago area.

. . .

The Supreme Court created qualified immunity in 1967, defining it as a modest exception for public officials who had acted in “good faith” and believed that their conduct was authorized by law. This meant that if a police officer claimed they believed that they were following the law and that their actions were to protect someone they couldn’t be charged even if they hurt someone in the process.

Just a decade and a half later, in Harlow v. Fitzgerald, the Court expanded this definition. Public officials would no longer have to establish they acted in good faith. Even officials who maliciously violated someone rights were immune unless the victim could show that their right was “clearly established”.

To do this the victim would have to cite a previous case that involved the same specific context and the same particular police conduct where the ruling went against the official. If the victim could not do so, which practically never happens, the officer would be shielded from liability.

That standard has continued through to today. Instead of taking into consideration whether someone’s civil rights have been violated and if so providing an appropriate remedy to address this, victims don’t even make it into court just because no prior judicial opinion happened to involve the same facts. Time and time again, officers have been found to be entitled to qualified immunity in officer involved shooting deaths.

. . .

Now in Illinois, the State Legislature is taking a stand against the doctrine of qualified immunity in order to remedy situations where cops act however they wish with the understanding that they can’t be held accountable for their actions.

Illinois House Bill 1727, introduced by local Rep. Curtis J. Tarver II (D-25th) would create the Bad Apples in Law Enforcement Accountability Act of 2021. The intent of the legislation is to remove the court doctrine of qualified immunity for officers, making them liable for civil litigation if their actions indicate the “deprivation of any individual rights” guaranteed in the Illinois Constitution. The liability is created even for officers who fail to intervene if such a deprivation is otherwise occurring.

Democrats in Springfield are taking another shot at eliminating qualified immunity from the state’s legal code. The Criminal Justice Reform Bill that passed earlier this year made a lot of changes to law enforcement, however, the provision that would have ended qualified immunity had to be cut for the full bill to pass.

However, they did include the creation of a Task Force on Constitutional Rights and Remedies Act charged with developing and proposing policies and procedures to review and reform constitutional rights and remedies, including qualified immunity for peace officers. (with the Illinois Criminal Justice Information Authority providing administrative support). The Task Force will have one year to submit a report with findings and recommendations to the Governor and General Assembly.

Not waiting for the year to be up, Tarver feels the time to act is now. He and other proponents of the legislation said the concept of qualified immunity is dangerous as it emboldens some officers to make reckless decisions that could cost lives, as in the case of George Floyd’s killing in Minneapolis last year and Daunte White just days ago.

“Qualified immunity is one defense in a host of defenses that law enforcement has,” Tarver said. “Someone putting their knee on someone’s neck for nine minutes when they’ve already surrendered, that’s not a split-second decision.”

Law enforcement is understandably fighting to prevent the legislation from passing. Opposition from police departments Opposition from city police departments resulted in it being taken out of the black caucus’s first police reform bill.

Opponents say that the bill prohibits peace officers from fulfilling their sworn oath and duty. They argued that the bill would contribute to ongoing problems with retaining and recruiting police officers who have cited recent changes to state law as reasons to not enter the law enforcement field in Illinois.

Andrew Bodewes of the Illinois Fraternal Order of Police said, “We don't believe that changes in qualified immunity are the correct tool to just solve the problem. Obviously, we always want to talk about bettering law enforcement, (we) always want to have that conversation, but we just don't see the value of using this tool.”

Police departments have also argued that getting rid of qualified immunity will lead to less people wanting to be police. “We have the membership rolls, we see the outcome, we know we're losing membership,” said Bodewes. “We're concerned that a change like this would further complicate that.”

Advocates for the bill don’t find that to be a problem. Peter Hanna, Legal Advisor on Privacy and Technology for the ACLU of Illinois (Chicago) said,

“When I hear about people saying, like, if we get rid of qualified immunity at all, or change it, people aren’t gonna want to be cops. Well, in some respects, that doesn’t trouble me as much because the people who are afraid of being accountable for violating the public’s constitutional rights, I don’t want them as cops.”

Hanna added, “We can no longer just accept the presence of bad apples in law enforcement as an inevitable truth. No reform, no matter how well intentioned, can be effective until we add real police accountability.”

Illinois Representative Tarver echoed the sentiment arguing that if law enforcement officers leave the field as a result of the proposed legislation, they did not belong there to begin with.

“If this leads to less police officers who are attracted to law enforcement because they know that they can demonize people and brutalize people, then I'm all for it,” Tarver said. “If this leads to attracting the right people, I'm all for it as well.”

Illinois Rep. Maurice West (D-Rockford) said this week, “This is not an anti cop, this is not a defund the police, this is none of that. This only targets the bad apples, the ones who do extreme measures, willful and wanton acts, not those who make mistakes, not for those. Mistakes happen. But it’s for those who violate a constitutional right, and it is obvious that it could have been avoided.”

Rep. Tarver expounded on this statement, stating that the proposed legislation is not meant to target individual police officers unfairly, but is designed to hold all officers to a higher standard.

“It's very simple, like everybody else in the private sector, control your employees, hire the best and the brightest, train them, provide the resources,” Tarver said. “If municipalities are concerned, all they have to do is follow that very basic guideline and I think we’d all be in better shape.”

The bill would also require local municipalities to disclose information about all settlements that occur in cases with law enforcement officers. The state of Illinois would have five years to enact the changes, if passed.

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