Bill to end qualified immunity ignites debate between rights advocates, police

Del. Jheanelle Wilkins

ANNAPOLIS — Police officers sued for having allegedly violated someone’s constitutional rights would lose their “qualified immunity” from being sued in cases when the plaintiffs’ right was not clearly established, under legislation debated before the House Judiciary Committee on Tuesday.

The court-created qualified immunity doctrine protects police officers from liability if they can show that the right they allegedly violated was not clearly established by law at the time of the violation.

This qualified immunity defense, critics say, has wrongfully absolved police officers who have used excessive force to detain and search suspects because judges have found that the law was not crystal clear that such force was constitutionally unreasonable.

But police and other supporters of the defense say its repeal would harm public safety as officers would be unwilling to aggressively fight crime for fear they would be held liable for even the most questionable violations of a suspect’s constitutional rights.

The repeal bill’s chief sponsor, Del. Jheanelle K. Wilkins, rebutted that argument.

“We must reject the idea that accountability for police officers is anti-police or harmful to public safety,” Wilkins, D-Montgomery, told the House committee. “Police accountability is public safety.”

Wilkins introduced the bill amid instances of excessive police force nationwide, including the death in January of Tyre Nichols during a traffic stop in Memphis, Tennessee, and the May 2020 murder of George Floyd by former Minneapolis police officer Derek Chauvin.

Qualified immunity “shields officers from liability,” Wilkins said.

The NAACP Legal Defense and Educational Fund provided testimony in support of House Bill 430, the proposed Police Immunity and Accountability Act.

But attorney Michael Shier, speaking on behalf of Maryland police, said repealing qualified immunity would have no effect on lawsuits against officers whose use of force was clearly excessive but would hold liable those officers who acted reasonably and in a good-faith belief that they were acting within the Constitution.

“Oftentimes, the law is not clear-cut,” said Shier, of the Fraternal Order of Police.

“You can’t expect perfection” from officers, Shier told the committee. “We have to be able to operate within some margin of error.”

In addition to repealing qualified immunity, the legislation would require plaintiffs who win cases against police officers to be awarded not only damages but reasonable attorneys’ fees and court costs. The awards would be paid by either the department employing the officer or the local jurisdiction.

The department or local jurisdiction could then seek reimbursement from the officer up to $25,000 or 5% of the award, whichever is less. The reimbursement amount would also apply to any out-of-court settlement reached with a plaintiff.

Shier said the settlement provision would further chill police officers in protecting the public by holding them financially responsible for settlements reached by their employer or local jurisdiction, even though they had no say regarding whether the case should be settled, Shier said.

A police department or county, like private parties in civil litigation, often settle cases to avoid the time and expense of litigation, he added.

“The officer will have to pay based on that settlement even though they have committed no wrong whatsoever,” Shier told the committee. “The officer did everything right.”