KSN Investigates: Legal challenges to qualified immunity

KSN Investigates

WICHITA, Kan. (KSNW) — As lawmakers consider options for police reform, law enforcement agencies argue against changing or eliminating the legal doctrine known as qualified immunity.

They say it could create more problems, including no legal protection for officers and frivolous lawsuits.

“It was an us versus them mentality,” said Michael Birzer. “We know what the problems are, and if something is not working, why are we continuing to do it?”

Birzer wore the uniform of a Sedgwick County Sheriff’s deputy for nearly twenty years. Now he’s a criminal justice professor at Wichita State University.

KSN asked him if he thinks officers have a target on their backs.

“I think to a certain extent yes, they do,” Birzer said.

He sees his former profession differently than he did while wearing the uniform. He has dedicated his career after law enforcement to studying and writing books on policing, racial profiling and qualified immunity.

Birzer does not think qualified immunity should be abolished.

“You get into potentially officers not doing their jobs because of fear of being sued individually,” he said. “I heard that argument a lot, get rid of it. But you know there’s protocol, there’s legal protocol in place where you may not get the defense of qualified immunity anyway at trial. And that’s up to a judge during hearings that they have to decide that.”

Andy Protzman is the attorney representing the family of Marquez Smart, a Black man who was shot and killed by Wichita Police officers in March 2012. Protzman thinks qualified immunity should be abolished.

“It presents a double standard, and it also gives the police officers a really strong defense to their bad actions,” he said.

The WPD said the two officers believed Smart fired shots into a crowd in Old Town at closing time. Four bystanders were injured. The officers shot Smart fives times from behind. After investigating, the district attorney said the use of force was justified.

But the Smart family’s attorney says Smart was running for safety after hearing someone else fire shots.

“We allege he was an unarmed man, who had done nothing wrong, who was shot and killed by police,” Protzman said. “And so we would’ve defined his constitutional right as the right to not be killed by police when you are posing no threat.”

The Smart family sued for excessive force, but a 2018 district court ruling dismissed the lawsuit citing qualified immunity. However, a federal appeals court reversed the Smart decision this year and said a jury can hear whether or not police used excessive force.

Protzman thinks there is a double standard with qualified immunity.

“The average person is deemed to understand what constitutional rights are, whether they’ve actually been declared in a particular case, whereas the police are given the benefit of the doubt and claim to not understand what constitutional rights are until they’ve been declared in a particular case,” Protzman said.

We also talked to Sedgwick County District Attorney Marc Bennett about his concerns.

“It is something that happens where prosecutors and cops do have frivolous lawsuits, liens put on their homes, things like that from people who are irritated at them,” he said.

While Bennett says his job comes down to proving someone committed a crime and not a civil offense, he did say Governor Laura Kelly’s Commission on Racial Equity and Justice would likely take up qualified immunity.

“This is going to take some time,” said Bennett. “It’s going to take more than just DAs and cops, you’re going to have, at the end of the day, this is a legislative issue, this is not a county commission
issue. I do agree though that it’s something that they’ll have to address.”

KSN Digital Extra: Wichita City Councilman Brandon Johnson on police reform, qualified immunity

KSN Digital Extra: Michael Birzer, criminal justice professor on police reform

KSN Digital Extra: Andy Protzman, defense attorney

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