Yesterday, I spoke about firing police officers. But that would be a lot easier if they were convicted of crimes – and many situations warrant that. Many times police do bad things that aren't illegal – but if that was the police's only problem, well, then we wouldn't need reform quite so much.
It's difficult to have this conversation without a basis in fact – I recommend either this piece from the California Law Review about the history of Qualified Immunity (correcting some of the poor scholarship), or this five part series on the subject at the Volokh Conspiracy, although only parts one and three are essential.
There is a part of me that feels a duty to not provide a summary, because the low-resolution picture I'd paint in a paragraph should not replace reading something excellent by an expert. But suffice it to say, all forms of immunity should be very carefully weighed, because they (obviously) can limit access to fair decisions, ending the legal process and preventing us from a more careful weighing instead of being adjudicated normally.
In particular, we should be careful about incentive systems that rely on how clear the rules are made. The current system incentivizes strange misbehavior – if a police officer does something strange enough in the course of abusing someone and violating their Constitutional rights, it may end up yielding them immunity.
Suffice it to say, there is a reason we prohibit cruel and unusual punishments. We understand that sometimes we must hurt our fellow citizens. No human belongs in a cage, yet without prison we would have trouble having any civilization at all. But we never, never need to find new and terrible ways to hurt each other. The torturers of North Korea may pride themselves on the ingenuity of their techniques, but we don't enjoy hurting people here.
I'll leave you with this story, which contains the following:
So, when Andrew Scott’s estate sought compensation for his death, it didn’t just have to prove that the officer had no warrant, knocked on the wrong door, and gunned down an innocent man in his own home; it also had to find another case “with facts similar to the undisputed facts” in Scott’s case. Oh, and the comparison had to be “particularized.” “High levels of generality” simply won’t do.
As well as this one:
How can courts tell when a violation of constitutional rights is justified enough to overcome qualified immunity? The Supreme Court tells lower courts to determine whether the violation ran counter to “clearly established law,” a term that the justices interpret in the narrowest possible ways. [Judge] Willett signaled that he found the premise absurd because it effectively requires that there be precedent for every imaginable constitutional violation, otherwise the offender can’t be held responsible. “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly,” he wrote. “Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question ‘beyond debate’ to ‘every’ reasonable officer.”
I recommend that you read more about this, before the next time you hear people talk about how Blue Lives Matter, as though that explains why you should oppose police reform. I'm curious why it exalts police to have them be above all judgment, when enforcing the rules fairly to every person is perhaps the noblest end for police to achieve.