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New York Becomes First City to Eliminate Qualified Immunity Protections for Police Officers


The New York City Council on Thursday passed legislation that will effectively end qualified immunity for police officers there, removing one of the largest impediments to holding officers personally liable for violating citizens’ civil rights, several local news outlets reported.

The measure, which passed by a vote of 37-11, was part of a series of law enforcement reforms aimed at increasing transparency between the public and the NYPD. City lawmakers said the rule would “ensure that officers who violate Constitutional rights in the course of a search and seizure or by the use of excessive force are not entitled to qualified immunity,” according to WPIX-TV.

In passing the resolution, New York became the first city in the country to end the controversial immunity mechanism. Colorado and Connecticut both have regulations limiting the invocation of the defense.

“What we are doing is saying the police can’t walk into the courtroom and say, ‘The plaintiff has no right to bring me here because I am immune,’” Democratic Councilman Stephen Levin of Brooklyn, who co-sponsored the bill, told The New York Times. “This is about giving people a right to protect the most fundamental rights in our democracy.”

Qualified immunity is a legal doctrine created by the Supreme Court that has steadily developed to prevent citizens from holding government actors accountable for constitutional violations enshrined in the Civil Rights Act’s § 1983.

The modern doctrine holds that qualified immunity “shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”

In order for such a right to be “clearly established,” however, the particular conduct of the alleged violator(s) must have been previously established — sometimes meaning an earlier case involving virtually the exact same set of facts to such an extent as to place the statutory or constitutional question beyond debate. The standard is subjective and often too high bar for plaintiffs to clear, and it often results in the dismissal of civil cases against police officers — even after a court finds the officers’ conduct violated a citizen’s civil rights.

Critics of the city’s decision have argued that removing qualified immunity protections might make officers more reticent to enforce the law, as a misstep could result in a costly lawsuit.

Following the vote, City Council Speaker Corey Johnson said that qualified immunity was rooted in racism and should have never been permitted in the first place.

“The [City Council] just voted to end qualified immunity for police officers, making NYC the first city in the country to do so,” he tweeted Thursday. “Qualified immunity was established in 1967 in Mississippi to prevent Freedom Riders from holding public officials liable even when they broke the law. Rooted in our nation’s history of systemic racism, qualified immunity denied Freedom Riders justice and has been used to deny justice to victims of police abuse for decades. It should never have been allowed, but I’m proud that we took action today to end it here in NYC.”

[image via YouTube screengrab]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.