New York City Passes Bill Denying Police Officers Qualified Immunity

Yesterday, the New York City Council passed a number of bills targeting police misconduct and promoting reform. Among the bills the City Council approved was Intro 2220-A, sponsored by Brooklyn Councilman Stephen Levin. In essence, Intro 2220-A creates a new private right of action under municipal law—in addition to the existing causes of action under state and federal law—for plaintiffs seeking redress for excessive force, false arrests, or unlawful searches. Crucially, unlike Section 1983, the federal law under which plaintiffs typically bring these claims, the bill provides that police officers cannot claim qualified or governmental immunity as a defense in this action. 

Qualified immunity is a fundamentally simple doctrine, providing that government officials, including police officers, cannot be held liable for violating a person’s rights unless those rights were “clearly established” at the time the violation occurred. This sounds reasonable enough in principle: If a right is not “clear,” it would be unfair to the officer to hold him liable because he could not have reasonably known the right was implicated in that scenario. In practice, however, courts have interpreted the category of “clear” rights very narrowly, consistently acknowledging that a police officer acted unconstitutionally but nevertheless still holding that he is not civilly liable for his actions because there is no law saying he cannot do precisely the thing he did. 

This framework frequently leads to perverse decisions. For example, in Jesop v. City of Fresno, the Ninth Circuit held that officers who stole $250,000 they had seized while executing a search warrant were entitled to qualified immunity because there had never been a case expressly stating police officers couldn’t steal money they seized. In Baxter v. Bracey, the Sixth Circuit granted qualified immunity to officers who ordered a police dog to attack a victim who had surrendered, reasoning that it was not sufficiently clear officers could not do this because, while existing law made clear officers cannot sic a dog on a suspect who had surrendered by lying on the ground, the suspect in this case had surrendered by sitting upright. Similarly, in Kisela v. Hughes, the Supreme Court held that police officers who shot a mentally ill woman holding a knife while she was on the other side of a chain-link fence were entitled to qualified immunity, distinguishing previous cases that had held that it was not objectively reasonable for officers to respond with deadly force when they were not under immediate threat. Still other cases have granted police officers qualified immunity to police and correctional officers because there was no existing law expressly stating they could not deprive a prisoner of food, or pepper-spray or taser a victim, for quite as long as they did. 

These cases are just the tip of the iceberg. But they make clear that qualified immunity has meant that police officers can escape liability merely because they were the first to behave exactly as badly as they did. 

For far too long, courts have signaled to police that they may well escape liability for even the most egregious actions and legislatures have stood idly by. But Intro 2220-A is a major step in the right direction—as the New York Times observed, “with the council’s vote, New York City becomes the largest jurisdiction to limit the ability of officers to invoke the defense.” While the bill does not abolish the defense of qualified immunity for police officers being sued under Section 1983 or other statutes—meaning there is still much work to be done—even a single cause of action under which the defense is not available will be important for victims of police misconduct. 

You can read KLLF’s previous coverage of qualified immunity here and here. The full text of the bill is accessible here and you can read more about the other police reform bills the City Council passed here.