The Players Coalition is stepping up to try to increase police accountability.
On Wednesday over 1,400 members of league personnel from the NFL, NBA, and MLB signed a letter sent to Congress supporting a bill proposed by U.S. Rep. Justin Amash (L-Michigan) and Rep. Ayanna Pressley (D-Massachusetts) called the “Ending Qualified Immunity Act.”
The letter has signatures from some of the top names in sports such as Tom Brady, Odell Beckham Jr., CC Sabathia, Gregg Popovich, and Drew Brees. Brees has apologized multiple times after being heavily criticized recently for his insensitive comments on NFL protests.
The purpose of the bill is to eliminate qualified immunity, a legal doctrine first developed by the Supreme Court in the case of Pierson v. Ray in 1967, which held that a police officer or government official should be afforded certain protections when sued in civil court. In effect, the doctrine allows those acting under color of state law the discretion to take certain actions, even unlawful ones, without being held liable.
In 1982, the law expanded. The case of Harlow v. Fitzgerald determined that government officials were awarded this immunity if their actions didn’t violate “clearly established” laws. Under this ruling a plaintiff would only win if a previous court found an official liable from almost the same fact pattern as a prior case.
Because so few individual police officers are charged via criminal law (usually a grand jury or prosecutor refuses to bring charges or a jury refuses to convict), a civil action, seeking financial compensation for their injuries, is often a victim’s only course of action. But qualified immunity makes it nearly impossible to hold police officers, and their supervising agencies, responsible in civil court.
Qualified immunity has been a controversial law for years. Many believe the doctrine has given law enforcement too much protection in encounters with civilians and has helped perpetuate a cycle of police misconduct.
Jeffrey Shaman is a Professor Emeritus at DePaul University College of Law, whose areas of expertise include constitutional law, civil rights and liberties, and judicial ethics. Shaman says qualified immunity establishes a “Catch-22” in our society.
“According to this doctrine, the police will not be liable. They won’t be held liable for action they take that is wrongful action that harms somebody unless they were aware of a clearly established rule prohibiting them from taking this action,” said Shaman. “If they act negligently, if they act beyond their authority, and their action harms somebody, you still can’t sue them. They won’t be liable for it unless they acted intentionally knowing that this was a wrongful act.”
This means that police can simply claim they didn’t know they were acting unlawfully and thereby can avoid being held liable for their actions.
Shaman says officers and government officials can only be held responsible for these actions in court if there already has been a precedent established that the action the officer took was deemed wrongful. However, in many cases of police brutality, officers have been able to use this rule to escape civil lawsuits and accountability for their actions because of the lack of precedent.
Even if an officer is found guilty of committing a wrongful action, the victim or victim’s family will not be compensated in a civil suit because there was never a prior rule established. This discourages many who have been mistreated by the police from filing lawsuits against them.
“There’s this gap here….people would have to bring a lawsuit to challenge this action knowing that it’s futile to bring the lawsuit, knowing that they are not going to get compensation for the damage that was done to them,” Shaman said.
“A court could rule that it was wrongful action and in that particular case they wouldn’t hold that police officer liable, but in the future, anybody who violated this new rule would be held liable….. Why would somebody waste their time bringing such a lawsuit and paying a lawyer to bring the lawsuit when they are not going to get any compensation?”
The doctrine was created to allow government officials and police officers to have certain freedoms while patrolling the streets. Shaman points out that the Supreme Court originally took this position because it believed police have a dangerous job and need to be able to act freely without the threat of being sued if they make a mistake.
However, with the video footage of former Minneapolis officer Derek Chauvin killing George Floyd and the outcry for justice over the death of Breonna Taylor in Louisville, Ky., law enforcement has never faced more scrutiny.
“We are tired of conversations around police accountability that go nowhere, and we have engaged in too many ‘listening sessions,’ where we discuss whether there is a problem of police violence in this country,” the Players Coalition wrote in its letter. “There is a problem. The world witnessed it when Officer Chauvin murdered George Floyd, and the world is watching it now, as officers deploy enormous force on peaceful protestors like those who were standing outside of the White House last week.”
Similar to these players, many around the country are calling for police officers to face more repercussions for their unjust actions against civilians. They believe the days of allowing officers to be able to irresponsibly use their power is over.
Some legal experts like Shaman believe that this level of power should have never been provided to law enforcement.
“This sort of extensive immunity didn’t need to be granted to police in the first place. Some people have argued even before all of this happened with George Floyd, people have argued that this doctrine gives too much protection to the police and allows them to violate people’s rights,” said Shaman. “The Supreme Court could have struck a different balance. They didn’t have to go as far as they did. They could have taken the position that the police are not liable unless they acted negligently or grossly negligently.”
People around the country are searching for the next steps to remedy this systemic issue and create more accountability from government officials.
As for Shaman, he thinks that the players are justified in fighting this cause and getting this law removed. If passed it could play a major role in limiting police brutality on a national scale.
“I think that is the next step,” said Shaman. “I think the doctrine of qualified immunity should be re-examined by the Supreme Court and the immunity that police have should be re-drawn giving more protection to the public from this sort of egregious police conduct.”