New York City Cuts Qualified Immunity for Police Officers

Critics say the move will have a chilling effect on policing

A NYPD police car in the snow in New York, on Dec. 17, 2020. Timothy A. Clary/AFP via Getty Images

The New York City Council has passed a series of measures that affect police operations, including a hotly debated measure that makes it easier to sue officers for misconduct.

The council voted last week to adopt five bills and three resolutions that it stated are “designed to increase police accountability and reimagine public safety in our city.”

One of the most significant of the measures adopted by the council was to eliminate qualified immunity, a doctrine that insulates government officials from civil liability for their conduct. Qualified immunity became the focus of intense public debate after it was cast into the limelight amid protests last summer following George Floyd’s police-custody death.

Proponents say the doctrine is important to allow government officials such as police officers to carry out their jobs with protection from undue interference and threats of liability. They also say it prevents frivolous or retaliatory lawsuits against officers.

Critics say the doctrine prevents officials from facing consequences for misconduct or abuse of power if their actions violate the U.S. Constitution but don’t contravene a “clearly established” rule.

NYPD patrols stand guard at Times Square in New York City, N.Y., on Jan. 3, 2020. Eduardo Munoz Alvarez/Getty Images

Brooklyn Councilman Stephen Levin, who sponsored the legislation, told Pix11 in an interview that limiting qualified immunity makes officers more accountable.

“There has to be consequences for misconduct,” he told the outlet on March 26. “I was really searching for legislation that we can pursue that would have a meaningful impact.

“That officer can walk into court and on the very first day, say, ‘I’m not even supposed to be here because this plaintiff doesn’t even have the right to bring me to court, I’m immune.'”

Critics of the move to remove qualified immunity protections from law enforcement officers have argued that it would make the public less safe by making police reluctant to take decisive action against violent criminals for fear of being sued.

Harvard Law School Professor Emeritus Alan Dershowitz called the decision to ax the protections an “outrage” as it leaves those on the front lines of the fight against crime more vulnerable.

“This is an outrage to take away qualified immunity only from the police,” Dershowitz told Newsmax in an interview March 27. He argued that the measure will have a chilling effect on responding officers, who are likely to begin asking themselves, “Will they be able to sue us for making an honest and simple mistake under pressure?” he said.

Attorney Alan Dershowitz, then member of President Donald Trump's legal team, speaks to the press in the Senate Reception Room during the Senate impeachment trial at the Capitol in Washington on Jan. 29, 2020. Mario Tama/Getty Images

“The idea that every police officer, when they have to make a decision whether to protect us, whether to protect innocent people, will be thinking about, ‘Are going to take our home, are they going to take our children’s allowance, or are they going to take health care away from us?’” Dershowitz said.

He suggested that it’s unfair to target police officers by removing the protections that other officials continue to enjoy.

“Remember, prosecutors have it, judges have it, many other public officials have it. Police are the lowest paid people of everybody on this chain,” he said.

It’s a sentiment echoed by Patrick Lynch, president of the New York City Police Benevolent Association (PBA), which represents some 24,000 police officers.

“New Yorkers are getting shot and police officers are out on the street all day and all night, trying to stop the bloodshed,” Lynch said in a statement. “Where are these City Council members? Safe at home, hiding behind their screens and dreaming up new ways to give criminals a free pass. It won’t get better unless New Yorkers shame the politicians into doing their job.”

In this screenshot from the RNC’s livestream of the 2020 Republican National Convention, Patrick Lynch, president of the Police Benevolent Association of the city of New York, addresses the virtual convention on Aug. 27, 2020. Courtesy of the Committee on Arrangements for the 2020 Republican National Committee via Getty Images

Other legislation passed by the council provides additional oversight and requires more transparency from the police. One of the resolutions that were voted on supports a state bill that gives final authority on the discipline of officers facing civilian complaints to the Civilian Complaint Review Board rather than the police commissioner. Currently, the police commissioner has the right to make final calls on disciplining officers.

Police Commissioner Dermot Shea, in a statement to CNN, expressed concern about measures that would undercut the department’s ability to manage disciplinary issues.

“Right now, the commissioner hires them, trains them, asks them to go in harm’s way to keep New Yorkers safe, and if an officer breaks the rules, I discipline them and if necessary fire them,” Shea told the outlet. “If I am not doing that the right way, I am accountable. The buck stops here. To take that away from the Commissioner, ask yourself who has the accountability then?

“No other city agency uses that system, nor does the FBI, the Secret Service, or the Marines. There is a reason for that. You need to know where the buck stops.”

Federal efforts to remove qualified immunity from all local, state, and federal law enforcement officers are also underway, with the House recently approving the George Floyd Justice in Policing Act (H.R. 1280) on a largely party-line vote, with two Democrats crossing the aisle to vote against it.

In a press statement by Congressional Black Caucus Chair Karen Bass (D-Calif.), Democrats summed up the change to the legal doctrine, saying the legislation “reforms qualified immunity so that individuals are not barred from recovering damages when police violate their constitutional rights.”

A nearly identical measure passed the House last summer but didn’t get a vote in the Republican-controlled Senate.

Republicans oppose the federal measure because, beyond removing qualified immunity protections, they say it will take millions of dollars away from police departments.

Former mayor and first responder Rep. Carlos A. Gimenez (R-Fla.) spoke about the importance of qualified immunity.

“Democrats discuss ways to push needed police reforms, but in this dysfunctional Congress, we got a bill that strips our frontline police officers from qualified immunity, that will weaken and possibly destroy our communities’ police forces,” he said.

“Taking away qualified immunity will lead to police officers not taking the decisive action and rendering impossible [the ability] to do their job. Without the security, officers will resign and deplete our [forces].”

Janita Kan and Masooma Haq contributed to this report.