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Tuesday, July 14, 2015

New York Agrees to Pay $5.9 million to Settle Case of Eric Garner

Qualified immunity means police aren't held liable for violating citizens's rights

The city of New York has agreed to pay $5.9 million to the family of Eric Garner to settle their wrongful death suit against the city and the NYPD. Garner, age 43 and father of six, died last July after Officer Daniel Pantaleo put him in a chokehold while arresting him for selling untaxed individual cigarettes.

Although the medical examiner ruled his death a homicide, and despite the fact chokeholds are banned by the NYPD, and even though video of the arrest recording Garner repeatedly pleading for air, telling officers “I can’t breathe,” a grand jury declined to indict Pantaleo.

“No sum of money can make this family whole, but hopefully the Garner family can find some peace and finality from today’s settlement,” Mayor Bill de Blasio said in a statement. “By reaching a resolution, family and other loved ones can move forward even though we know they will never forget this tragic incident.”

New York City Comptroller Scott Stringer said on Monday the settlement with Garner’s family was “in the best interest of all parties,” adding that the city did not admit liability.

“I believe that we have reached an agreement that acknowledges the tragic nature of Mr. Garner’s death while balancing my office’s fiscal responsibility to the City,” Stringer said in a statement.

While we can agree with Mayor De Blasio that compensation was due to the Garner family, this settlement resolves nothing about issues with police behavior and misconduct.

Making taxpayers shell out for abuses committed by officers does nothing to pressure departments to reform their use of force. The costs are hidden and dispersed among all taxpayers, and even if a few people read about it in the paper and are annoyed, they don’t have the incentive (or even the mechanism) to force the police department to change officers’s incentives or hold them accountable.

That’s just the way government bureaucracies and unions like it. The problem here is the doctrine of “qualified immunity,” which shields police officers from being held liable for violating people’s rights.

Evan Bernick explains the origin of this pernicious idea:

The federal law that allows citizens to sue for constitutional violations, is broad, unequivocal, and unambiguous. It says that “every person” who is acting “under color of” law who causes a “deprivation of any rights… secured by the Constitution and laws” “shall be liable to the party injured.”


In the 1967 case of Pierson v. Ray, the Supreme Court held that police officers sued for constitutional violations can raise “qualified immunity” as a defense, and thereby escape paying out of their own pockets, even if they violated a person’s constitutional rights. …

In practice, qualified immunity provides a near-absolute defense to all but the most outrageous conduct. The Ninth Circuit has held that throwing a flash-bang grenade “blindly” into a house, injuring a toddler, isn’t outrageous enough.

Just last year, in Plumhoff v. Rickard, the Supreme Court decided that firing 15 bullets at a motorist is a reasonable method to end the driver’s flight from the police. So much for “every person” “shall be liable.”

Qualified immunity shields police misconduct not only from liability but also from meaningful judicial scrutiny. Private lawsuits are an essential tool in uncovering the truth about police misconduct. The discovery process can yield information that makes broader policy changes within police departments possible. …

Qualified immunity can cut this search for truth short. If qualified immunity is raised as a defense before trial and … it is granted, discovery stops, and there is no trial on the merits.

The doctrine of qualified immunity was invented by judges because they decided that it might be a good idea to exempt officials from normal liability so that they can do their jobs without fear of being sued.

This decision was unabashedly policy-oriented: it was thought that government officials would not vigorously fulfill their obligations if they could be held accountable for actions taken in good faith. Under current law, the general rule is that victims of rights violations pay the costs of their own injuries.

But this is a horrible idea and a double-standard. There are many people doing socially valuable jobs — doctors, say — who would like to be free from the risk of lawsuits so they can more “vigorously fulfill their obligations.” No doubt they would also like it if the taxpayers paid for their defense and paid the judgment if they lose the suit.

But we do not grant such special privileges. We understand the perverse incentives it would create, we know the unfairness that would result — even if we agreed that most doctors are conscientious people who usually are acting in good faith.

We don’t hold some people above the law, however important their work is — except for government officials who violate people’s rights under the color of law, using the authority of the state. Then we not only protect them from liability, we punish taxpayers for their misconduct.

New York Governor Andrew Cuomo announced last week he would appoint a special prosecutor to handle investigations when citizens are killed by police under questionable circumstances. This is probably a good step towards accountability, since it creates at least some measure of independence in investigations into potential abuses, rather than allowing agencies to essentially investigate themselves.

But a more important step would be empowering citizens to vindicate their own rights in a court of law, in a serious, impartial, evidence-based process to uncover the truth. To this end, we must abolish qualified immunity.

  • Daniel Bier is the executive editor of The Skeptical Libertarian.