WICHITA, Kan. (KSNW) — Should you be able to sue a law enforcement officer, if he or she violated your civil rights? It’s a highly debated topic in the legal doctrine known as “qualified immunity.” Lawmakers at the state and national level are re-examining the issue as many are calling for police reform.
The Supreme Court created it in 1967. Qualified immunity is said to balance two things; “the need to hold public officials accountable when they exercise power irresponsibly, and the need to shield officers from harassment, distraction and liability when they perform their duties reasonably.”
However, it evolved over the years to allow lower courts to dismiss civil lawsuits “without determining whether a constitutional violation has occurred,” adding “so long as the right at issue was not clearly established.”
In other words, there needs to be a case with an existing judicial decision with similar facts. It’s something critics say make it virtually impossible to hold officers accountable even if there’s a civil rights violation.
Over the past month, KSN reached out to several lawmakers to get their take on calls for police reform. One of the topics we discussed with both Republicans and Democrats was qualified immunity.
“Qualified immunity should be on the table, we should debate it, ” said State Representative KC Ohaebosim, D-Wichita. “Should it be limited, the whole scope? I don’t have a problem doing that.”
Ohaebosim didn’t commit to one side of the issue or the other, but said the state needs to create a task force. And since that interview, Governor Laura Kelly, D-Kansas, created the Commission on Racial Equity and Justice.
“It’s not a law. It’s not something Congress passed,” added U.S. Senator Jerry Moran, R-Kansas. “I am one who is willing to have those conversations to try and find that spot which we find good policy that protects law enforcement from frivolous lawsuits, and reduces their ability to do their jobs.”
Moran said he’s open to those conversations about changing qualified immunity. He said he feels there are several Republicans in both the House and Senate who are willing to have the discussion.
“I was raised to respect law and order,” said Congressman Roger Marshall, R-Kansas 1st District. “Right now, I would leave things as is, that qualified immunity helps protect those police officers, that when they’re willing to go up and put their life on the line, a split second decision that they need that protection.”
Marshall is not in favor of changing qualified immunity. The representative, now running for U.S Senate, says police reform should remain a local issue within departments and within local municipalities. However, Marshall did say he thinks departments should focus on better screening officers and their mental state.
“I’m a supporter of leaving qualified immunity in place, provided that the law enforcement officer follows their practices and follows the right procedures that they have in place,” said Congressman Ron Estes, R-Kansas 4th District.
While Estes supports qualified immunity, he did say there needs to be more transparency in law enforcement agencies. One of the congressman’s examples included proposals in the “Justice Act,” sponsored by U.S. Senator Tim Scott, R-South Carolina, that include tracking excessive force complaints.
“That’s a delicate balance,” said State Representative Jan Kessinger, R-Overland Park. “We need to take a look at it, what protections are necessary, and what protections are not. We need to revisit that for sure.”
Kessinger feels departments also have to do a better job holding officers accountable, especially when it comes to investigating excessive force complaints.
“Something needs to happen,” said State Representative Ponka-We Victors, D-Wichita. “People that have been stubborn before and not really wanting change, hopefully this forces them into a place where we can work on a bipartisan issues.”
Victors said she plans on introducing some police reform bills next legislative session, but she didn’t tell KSN what those bills would entail.
“There’s no reason to have a different standard for police officers,” said State Representative John Carmichael, D-Wichita. “Somehow we will fix the problem by having changed the law, it doesn’t work that way in human behavior. You have to make systemic changes in large organizations and that is something that a politician can’t change.”
While the majority of lawmakers we spoke with say they’re open to discussing possibly changing qualified immunity, others would argue you’re opening up Pandora’s Box if you completely eliminate it. Be sure to stay with KSN as we bring you that story next.
DIGITAL EXTRA – Politicians extended answers on qualified immunity: