The Major Cities Chiefs Association (“MCCA”) is an organization of 79 police chiefs, commissioners and sheriffs who represent the largest cities in the United States and Canada. Last year I wrote about how the MCCA published a misleading “Law Enforcement Reform Statement” stating that the organization “opposes the repeal or amendment of the Qualified Immunity Act” (although there is, of course, no Qualified Immunity Act). .

Now, however, the MCCA has changed its mind. Just yesterday the organization issued an extraordinary “Declaration on Qualified Immunity Reform,” recommending substantial changes to the doctrine while arguing that it should not be eliminated entirely. The declaration characterizes the proposed reforms rather modestly and states that “[w]Although the MCCA opposes the elimination of qualified immunity, the MCCA supports reforming the doctrine to better promote transparency and accountability. “However, the details of the statement make it clear that the MCCA is in fact proposing nothing less than the elimination of the central feature of modern qualified immunity – the infamous standard of“ clear law ”.

As a threshold, I’ll note that while the MCCA statement is much more accurate than many similar statements from the law enforcement lobby, it is still misleading on one crucial point – it repeatedly suggests that qualified immunity protects police officers who are reasonable in good Act faith. In the “Background” section, for example, the MCCA says:

While calling for the complete elimination of qualified immunity, the doctrine should provide law enforcement officers who act objectively appropriately with the protection necessary to enable them to perform their duties effectively.

And the first of the MCCA’s “key principles” is:

Law enforcement officers must continue to have access to the necessary safeguards so they can do their jobs without fear of retaliation for actions that are objectively reasonable and carried out in good faith

As I’ve explained many, many, many, many, many times Qualified immunity is not a bona fide defense. Whether or not defendants receive qualified immunity has nothing to do with whether they actually acted in good faith or whether they intended to violate a person’s rights – all that matters is whether the defendant is against what is “clearly stated.” Act ”, which generally means: whether there is a previous judicial decision in the respective jurisdiction regarding the same specimen of facts.

Now the MCCA is absolutely correct that police officers are and should be protected from liability “for acts that are objectively reasonable and carried out in good faith”. However, this protection arises from the fourth amendment, not from a qualified immunity. Indeed, the standard of “objective reasonableness” highlighted by the MCCA is taken directly from the case law on the Fourth Amendment, which states that officials, if they act objectively sensibly, are in no way violating the rights of any person. Therefore, by definition, officials do not need qualified immunity to protect them from liability in such cases.

Despite this moderate inaccuracy, it is clear that the MCCA knows exactly what is wrong with qualified immunity – the “clear law” standard. Under “Current Challenges”, the declaration says: emphasis added:

The MCCA acknowledges that the courts’ current interpretation of qualified immunity has made it difficult in some cases for plaintiffs to demonstrate that their constitutional rights have been violated. In order for a court to determine that qualified immunity does not apply, plaintiffs must demonstrate that their rights have been violated and that, at the time of the incident, it was clearly established that the officer’s actions violated those rights. To prove this The plaintiffs must refer to an earlier case, as amended Jurisdiction with an essentially similar set of factsin which the court found that an official’s conduct violated an individual’s constitutional rights.

The MCCA then reiterates its opposition to the “clearly established law” in its “Qualified Immunity Reform Declaration” section, which states:

Plaintiffs should not have to refer to a previous case with essentially similar set of facts to prove that their rights have been violated.

I can’t tell you how refreshing it is when the MCCA correctly recognizes that “clearly established law” requires a case with functionally identical facts. My only point of contention is the phrase “the current interpretation of qualified immunity by the courts” which suggests that this requirement is some kind of deviation or distortion of doctrine. On the contrary, that is the commonplace Functioning of qualified immunity.

Perhaps the most interesting feature of this statement is that the MCCA is not just an abstract description of its position. In fact, four different qualified immunity cases are identified that would come out differently under the proposed “reform” of the doctrine – all cases that I have previously written about and in which Cato has filed amicus briefs. You are:

• Baxter v. Bracey. This is the case when the Sixth Circle granted immunity to two officers who used a police dog against a suspect who surrendered and was sitting on the floor with his hands up. A previous case had found it illegal to use a police dog without warning against an unarmed suspect lying on the floor with his hands on his sides. Despite the apparent factual similarity, the court found that the law was not “clearly stipulated” as in the previous case the suspect was lying on the floor while Baxter sat on the floor with his hands up.

• Kelsay v. Serious. This is the case where the Eighth Circle in an 8-4 en banc decision granted immunity to a police officer who grabbed a little woman in a bear hug and slammed her to the ground, breaking her collarbone and knocking her unconscious all because you walked away from him after telling her to return here. The court ruled that the law was not “clearly established” as there was no previous case where it was specifically stated that an officer could not use a “shutdown” against “a suspect who ignored an officer’s orders and walked away” .

• Corbitt v. Vickers. This is the case when the Eleventh Circle granted immunity to a deputy sheriff who shot and killed a ten-year-old child who was lying on the ground while repeatedly attempting to shoot a dog that posed no threat. The court ruled that the law was not “clearly established” as there was no previous case law on the “unique facts of this case” in which a child was accidentally shot while the officer was intending to shoot someone (or something else) .

• Frasier v. Evans. This is the most recent case where the Tenth Circle granted immunity to several officers who molested Levi Frasier, threatened arrest and conducted an illegal search, all because Frasier recorded that they made a drug arrest. Indeed, these officers knew that they were violating Frasier’s rights because they had been specifically trained for years that citizens had the right to publicly register the police. They continued to receive immunity, however, because although four districts had already decided that such behavior was unconstitutional, this particular right was not yet “clearly established” in the tenth district where this violation occurred.

The MCCA modestly describes its proposed standard as a denial of qualified immunity “when an official is adequately informed that his conduct violates a constitutional right or that the official’s conduct was objectively inappropriate”. But if Baxter, Kelsay, Corbitt, and Frasier all come out differently under this standard, then this reform is no humble tinkering; It is a profound reshaping of what qualified immunity actually is.

Overall, the fundamental concern of the MCCA appears to be that officials who act in good faith and pursue reasonably legitimate ends should not be held civilly liable. I totally agree. But as I described above, the hallmark of the fourth amendment itself is “adequacy,” which means that actual errors in good faith do not violate anyone’s rights and render qualified immunity irrelevant.

So what’s left then? If the MCCA is to reform but not eliminate qualified immunity, in which zone do they think police officers should still be exempt from personal liability, even if they violate people’s rights? The statement doesn’t give a straight answer, but one possibility would be the kind of “bona fide safe havens” that were included in Senator Mike Braun’s reform bill last year that I discussed at the end of this post. Congress could cut out the “clearly established law” standard, create joint liability between officials and departments, but also clarify that officials cannot be held individually liable if they are reasonably based on state law, precedent, or departmental policy.

While we can discuss the exact details, the sum total of the MCCA’s statement makes it clear that there are “compromise” approaches to qualified immunity that respond to reasonable concerns of police organizations, but still sensibly address the most fundamental problems with the doctrine. If even the law enforcement lobby can come on board with such an approach, there is no reason Congress cannot.