Much can, should, and must be done, to curb police brutality. The task is difficult, but far from hopeless. But riots and looting are both wrong in themselves, and likely to have counterproductive results.
The brutal recent killing of African-American George Floyd by a Minneapolis police officer has sparked outrage at police abuses, and led to rioting and looting in many cities around the country. It’s understandable if many people—particularly minorities—feel a sense of anger, frustration, and hopelessness in the wake of these events, which come in the midst of a terrible pandemic. I sometimes feel that way myself.
But there is much that can be done to curb police abuses. The task is difficult, but far from hopeless. On the other hand, rioting and looting are not only wrong in themselves, but likely to have counterproductive effects.
I. What Can be Done
All too often, police get away with brutal treatment of civilians, particularly poor minorities. The problem is not that police officers are unusually bad people. It’s that they have bad incentives, under which they are rarely held accountable for abuses. Those incentives can and should be altered.
An important first step would be to get rid of the legal doctrine of “qualified immunity,” under which law enforcement officers are immune from suits for violating citizens’ constitutional rights unless the officers’ actions violate “clearly established” law. The Supreme Court interprets the term “clearly established” so narrowly that officers routinely get away with horrendous abuses merely because no federal court in their area has previously decided a case with essentially identical facts. Recent examples include stealing $225,000 from civilians and shooting a 10 year old boy in the course of an attempt to shoot the family dog (who posed no threat to the officer).
Qualified immunity is not required by the Constitution or even by a federal statute. It is a purely judge-made doctrine made up by the Supreme Court itself in a misguided effort to protect law enforcement officers from excessive litigation. University of Chicago law professor and Volokh Conspiracy co-blogger Will Baude explains why the doctrine lacks any valid legal basis in this excellent article.
The Court is right now considering taking several cases whose consideration could lead to the abolition or at least the narrowing of qualified immunity. Both Justice Clarence Thomas, the Court’s most conservative member, and Justice Sonia Sotomayor, the most liberal, have been severely critical of qualified immunity. There is a real chance they can persuade at least three of their colleagues to take the same view.
Rolling back qualified immunity will not put an end to all police abuse. But it will make it possible to hold police accountable in court for egregious violations of civil rights, which in turn will alter their incentives.
Co-blogger Jonathan Adler rightly warns that state and local governments might respond by indemnifying police officers for the damages they have to pay in such cases. But even if that happens, it would still be a step in the right direction. Indemnification costs money that many local governments will be loathe to pay. They will therefore have an incentive to crack down on abusive officers, particularly repeat offenders who routinely force authorities to pay out large sums to settle claims.
As Adler also explains, empirical research shows that impunity for police abuses is often promoted by police unions. State and local governments should consider banning police unionization, or at least curbing unions’ powers by, for example, eliminating disciplinary issues from the list of matters that are subject to collective bargaining.
