Of course, most public officials don’t confess in writing to violating constitutional norms, and historically, qualified immunity’s proponents have been concerned that liability would take police off the job to defend themselves against lawsuits. But the increasing availability of video footage—whether from official sources or ubiquitous phone cams—means that the specter of beleaguered bureaucrats or upstanding patrol officers spending precious hours defending themselves against frivolous accusations is often a red herring. Very simply, these offenses are real, documentable, and easily dealt with—if the government is acting in good faith.
So what about the argument that officials, and particularly police in life-and-death situations, can’t be expected to know—or hesitate over—whether their actions might later be judged unconstitutional? Well, it didn’t really require my law degree, or any special training, to know that the kid arrested for criticizing an officer’s driving—like the guys, in another case I handled, coldcocked by a police officer’s flashlight so violently while handcuffed that it shattered, and the youth, in yet another case, placed in an adult lockup because the arresting officer claimed that the kid, who was tall and black, looked adult to him—had his rights violated. It’s hard to assert with a straight face that the officers didn’t know that too (the officer in the latter case actually smirked at me while making that claim at his deposition). It’s even harder to claim now, after countless nationally publicized incidents, that choke holds, chest compressions, cranial beatings, and shootings on sight are either necessary law-enforcement tactics or close calls requiring complicated constitutional exegeses. Not to mention that they just don’t happen as often in other democracies as they do in the U.S.
Adam Serwer: Trump gave police permission to be brutal
If we did away with qualified immunity, and held people with government power to the same standard of legal conduct as normal human beings—like if you break the law, you’re liable—we would have a lot less violation of constitutional rights. Would we have less crime control? Only if officers can’t make the same calculations all of us make every minute, while, say, driving at highway speed, about whether normal people would consider our conduct negligent or reckless. The practices most commonly being suggested for legislative proscription, which any enlightened police chief knows to be both wrong and counterproductive, would largely vanish overnight. And not because of the proverbial heavy-handed federal (or state) regulation, but rather through the normal human mechanism of risk/reward calculation that calibrates the behavior of all reasonable people, including police officers and government officials.
After all, figuring out what’s right and what’s wrong doesn’t take detailed legal codes, or years studying them. It just takes accountability.