State Legislators Renew Push For Qualified Immunity

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Illinois is inching toward being the third state to revoke qualified immunity, coming after New York passed the Qualified Immunity Reform and New Mexico passed the Civil Rights Act earlier this year. In doing so, Illinois would no longer allow a legal principle that grants police officers performing discretionary functions immunity from civil suits. This would mean dissolving a history of barriers to justice, accountability and healing in communities where police officers have caused unconstitutional harm.

House Bill 1727, introduced by Rep. Curtis J. Tarver, D-Chicago, has recently made it past the committee and is waiting to be voted on.[1]  The bill would create the Bad Apples in Law Enforcement Accountability Act, which aims to remove the Illinois court doctrine of qualified immunity for officers. It will open officers up to civil litigation if they participate in the deprivation of any individual’s rights guaranteed in the Illinois Constitution—which would also apply to officers who fail to intervene if they witness a deprivation occurring.

Qualified immunity is a federal legal principle, so the Bad Apples Act would only allow people to bring civil cases forward if their Illinois constitutional rights have been violated by officers, not if their federal constitutional rights were violated.

According to the ACLU of Illinois’ website, “Because of qualified immunity, a small minority of police can continue to engage in unconstitutional conduct against residents with virtually zero consequences or ramifications.”

The Bad Apples bill was originally included in Gov. J.B. Pritzker’s police reform bill in February that ended cash bail, but was later left out. Now, the individual bill needs to secure 60 votes in order to move to the Senate, which will then move to Pritzker. It is close to the finish line, but Peter Hanna, an ACLU of Illinois legal advisor, said it is a continuous uphill battle.

During the “No More Bad Apples: A conversation on police accountability” virtual event Monday, April 19, Tarver said he reintroduced the bill because there is a lack of trust in police officers in communities across Illinois.

“If I’m concerned about talking to you one day and having a solid conversation, and being shot for wearing the wrong color t-shirt the next day, what kind of relationship does that really build?” Tarver said.

With little to no support from police officers, the removal of qualified immunity is highly misunderstood. John Catanzara, president of the Fraternal Order of Police in Chicago, compared efforts to end qualified immunity to “quasi-defunding” the police and said cops are being unfairly blanketed as villains, as reported by Shia Kapos in POLITICO.

But, the Bad Apples Act would hold officers accountable in terms of civil liability, not criminal liability, if they violate someone’s Illinois constitutional rights.The FOP did not respond to numerous requests for an interview.

Former Chicago Police Department officer David Franco said the removal of the principle will only negatively impact “bad cops.” With the fourth amendment in place, if officers are acting in good faith then they have nothing to fear. Franco said without police accountability in place, communities will not believe officers are legitimate with their authority.

“This doctrine, invented by the Supreme Court in 1982, prevents courts from even determining whether a police officer violated someone’s constitutional rights unless that person can identify ‘clearly-established law’—a previous decision finding that exactly what the police officer did was unconstitutional,” Hanna said. “A finding that similar conduct is unconstitutional is not enough—it must be an exact match. In the end, all qualified immunity does is ensure bad apples remain unaccountable, victims are deprived justice, good cops can’t regain public trust and communities can’t heal.”

Rep. La Shawn K. Ford, who is a sponsor of the Bad Apples Act, is a supporter of protecting all individuals’ constitutional rights and holding police officers accountable. On Monday, April 19, Ford introduced legislation that would require all police officers in Illinois to be educated on critical race theory, the same day President Joe Biden’s Department of Education announced its intent to require critical race theory be taught in grades K-12.

On Tuesday, April 20, after the jury came to a guilty verdict for former Minneapolis police officer Derek Chauvin, Vice President Kamala Harris called on Congress to pass the George Floyd Justice in Policing Act, which would ban chokeholds and change qualified immunity for law enforcement.

Ford’s proposal focuses on law enforcement in Illinois, and he said the program would have a specific curriculum taught through city colleges, as well as police academies. In-line with Biden’s proposal—which will include grants in American History and Civics Education programs—Ford said the plan is to ask Congress to make those grants available for Illinois.

As for rollout, Ford said it all depends on pushback.

“If there is a will to do it, we can do this before the end of May,” Ford added.

The Bad Apples Act would help Chicago save some money, too—with blanket immunities in place, Chicago has paid more than $500 million in the past 10 years for police misconduct. If the bill is passed, Illinois police departments will no longer allow “bad apples” in the department to rack up civilian complaints without taking action to prevent further harm.

Craig B. Futterman, a clinical professor at the University of Chicago Law School, is the founder and director of the Civil Rights & Police Accountability Project, which is the first of its kind in the U.S. For the last 20 years, Futterman has focused on addressing policing and police accountability through the project and said the lack of police accountability is not a state issue, rather it is a national issue. He said police accountability is almost always linked to race and racism, excessive force and violence, and lack of transparency.

Last year, police killed three people a day. In 2021 alone, police killed 319 people, according to data from Mapping Police Violence.

“There are more people than I can even begin to count who have been harmed as a result of police abuse. Families destroyed, people [wrongfully] incarcerated, people badly injured, people killed, all by the very institution that is charged with protecting folks,” Futterman said. “What happens when members of that institution become predatory should be a fundamental concern to every person in America.”

In a study done by Alexander A. Reinhart, it was found that since it originated, “qualified immunity was granted at a higher rate than it was denied, and both the courts of appeals and the Supreme Court were more likely to reverse denial of qualified immunity than to reverse a grant of qualified immunity. In short, appellate courts appear to have supported the doctrine’s protections much more than the district courts whose decisions they review.” There is no concrete data on how many civil cases have been dismissed due to qualified immunity, and it is hard to tell how many people did not attempt to bring cases forward due to the principle.

In regard to the shooting and killing of 13-year-old Adam Toledo at the hands of a Chicago police officer, it is difficult to tell whether the removal of qualified immunity would help deteriorate the barrier for justice and accountability because the officer has not yet been identified. But, if the identity is revealed and it is proven that the officer had complaints made against them in the past, then the ability to take the case to court and have it looked into would be much greater. If there are no former complaints made about the officer, then there is no guarantee.

“The bill does not impose any criminal liability on police or make them responsible for damages from their own pocket. It just creates a pathway, albeit a very narrow one, for the people to hold police accountable when they violate a person’s rights under the Illinois Constitution,” as stated on the ACLU of Illinois’ website.

The Bad Apples Act is meant to empower people and rebuild the trust with police officers in communities. The desire to end qualified immunity is also one that is fairly nonpartisan and has support across the ideological spectrum.

“For far too long, police have relied on qualified immunity to evade responsibility and liability for egregious constitutional violations. This doctrine not only undermines accountability and eviscerates trust in law enforcement, it prevents courts from even determining whether a police officer’s actions violated the constitution,” Hanna said.