It is not enough to only know about law enforcement misconduct. Transparency in government is only as powerful as the citizen’s right to give the data voice, meaningful voice. The third law of motion applies to the government as much as any other discipline. For every action, there is an equal and opposite action. When police misconduct results in injustice, there is an equal and opposite force (the force of justice) that is set in motion. If a mechanism is put in place to channel that voice, such as jury trials, the action may take place there. Where there is no mechanism in place, the equal and opposite force will make its own way.
Qualified immunity is a judicial doctrine that shields government officials from being held personally liable for constitutional violations, like abuse of force, provided that the government official did not violate clearly established law.
Some form of qualified immunity is necessary for law enforcement officers acting in the line and scope of their duties (within the law) and in the heat of the moment. When faced with a heated threat of force capable of serious personal injury or death, law enforcement officers cannot be expected to reflectively contemplate every action. Even if the expectation might be justified, the weight of using force to protect citizens or themselves is a high priority that excuses conduct that would otherwise be legally actionable in society.
However, the further away from the heat of the threat an officer gets, the thinner the shield of qualified immunity. Negligent hiring, training, and retention of officers, for example, is a contemplative decision-making process made in the cool place of administration.
Qualified immunity for hiring, training, and retention decisions should be eliminated. Further, a bright-line rule should be established that all law enforcement actions outside of their line and scope of employment are not protected by qualified immunity.
Removing the shield of qualified immunity would open the door for private attorney generals, public interest law firms, and private citizens to bring actions for negligent and otherwise wrongful actions. Transparency should be protected by statute by making these claims reportable to a national law enforcement database.
Revised June 22, 2020