Since the highly publicized deaths of George Floyd and Breonna Taylor, communities have grappled with how best to hold police officers who commit misconduct accountable and prevent them from engaging in future misconduct.
In addition to internal administrative discipline by police departments, police officers can be held accountable for misconduct through criminal liability, civil liability and decertification. In recent years, there has been substantial momentum to eliminate “qualified immunity” for police officers so that these officers can be held personally liable, usually as a result of being sued for monetary civil damages.
Qualified immunity is a judicial doctrine that shields government officials — such as police officers — from being found personally liable for violating a person’s rights. It was created to ensure that officials would not be hindered from taking quick action if necessary, that they wouldn’t be burdened with trivial litigation and that they would not have to use their own financial resources in civil cases after they had been found guilty of misconduct. Also, the heavy burden to prove that qualified immunity does not apply falls upon the aggrieved or their families.
Courts use a two-part test to determine whether an officer is granted qualified immunity. In part one, the court determines whether the officer violated the constitutional rights of a subject. If no, the officer is granted qualified immunity. If yes, part two determines whether the officer acted knowingly in violation of the Constitution and that their conduct was thereby unlawful. If no, the officer is granted qualified immunity. If yes, the case moves forward.
Since 2009, as a result of the Supreme Court decision in Pearson v. Callahan, lower appellate courts have been allowed to skip part one of the two-pronged test for qualified immunity, making it easier for courts to rule in favor of officers rather than plaintiffs. That leaves the community with little ability to hold law enforcement answerable — in any meaningful way — for their transgressions through police misconduct.
It is important to hold individual police officers who engage in misconduct criminally and civilly accountable. However, the only way to guarantee that a police officer does not continue to engage in misconduct is to revoke his or her license. Indeed, as absurd as it may sound, if a police officer is convicted of committing a felony, the officer can still keep his or her certification and receive employment at a police department. This is also true if there is a civil judgment against a police officer due to misconduct. The best way to prevent these officers from engaging in future misconduct is to decertify them.
A certification or license provides a police officer with his or her authority, including the authority to carry and use a firearm as a police officer. Revoking this license, also called decertification, takes away the officer’s authority. Moreover, it prevents a police officer from transferring from one department to another — and in doing so evade accountability.
Since 2020, roughly half the states have enacted policing reform laws that strengthen the decertification process. Some of these state laws provide a model for police accountability by linking decertification to criminal and civil liability.
For instance, Illinois’ Safety, Accountability, Fairness and Equity-Today, or SAFE-T, Act expands an officer’s eligibility for decertification to include the commission of any felony and certain misdemeanors. This ensures that police accountability extends beyond criminal liability to also include an officer losing his or her authority and ability to be a police officer.
Likewise, Colorado enacted the Enhance Law Enforcement Integrity Act that provides for decertification when an officer uses excessive force or fails to intervene when another officer uses excessive force. Also, Massachusetts enacted a law that provides for decertification of police officers before the elimination of qualified immunity. An officer must first be decertified to trigger the exclusion of the qualified immunity defense in a civil case.
To ensure effective police accountability, the decertification process must be linked to criminal and civil liability. The elimination of qualified immunity that acts either as a trigger for or an extension of the decertification process would deliver the commitment to police accountability that the public demands and deserves.
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ABOUT THE WRITER
Sonia Pruitt, a retired police captain, is founder of the Black Police Experience. She also is a former chair of the National Black Police Association and a professor of criminal justice at Montgomery College in Maryland. Carlton T. Mayers II, Esq., founder of Mayers Strategic Solutions, formerly directed the criminal justice reform program for the NAACP’s national office and co-wrote the NAACP report “Born Suspect: Stop and Frisk Abuses & the Continued Fight to End Racial Profiling In America.”
