INBOX: Lawyers question use of qualified immunity for police

December 31, 2014

To the editor:

As a law firm that has a focus on civil rights, we have watched and are troubled by the recent developments in Ferguson, Missouri; Cleveland, Ohio; and New York City. As practitioners in Indiana, we believe that it is important to keep apprised of how other communities address policing and police excessive force. Activists have taken to the streets, and protests (some peaceful and some not) have shown the public outrage over police brutality. Even our local Marion County Bar Association has spoken out about this matter.

It seems that the recent developments reveal a systemic, if not an epidemic, problem. And there can be little doubt that the recent non-indictments have served to spark a greater fire of disappointment over police action and lack of accountability.

But what real alternatives are there to address this serious problem? Should we seek more police merit-board hearings? We believe that those rarely correct institutional problems and are often overseen by the police themselves. Should we seek more cameras in police cars and body cameras on police officers? The Indianapolis Metropolitan Police Department is piloting such a program. However, a camera was still not enough to cause a New York grand jury to indict an officer in an apparent homicide. And while the attorneys have listened, it appears that no one has sought to take a meaningful step to lift the shield that truly protects police officers’ actions: qualified immunity.

Qualified immunity is the legal protection given to officers for their actions. In the most basic terms, qualified immunity protects all officers but those that are plainly incompetent or those officers that knowingly violate the law. Hunter v. Bryant, 502 U.S. 224, 227 (1991). In other words, law enforcement officers are shielded by the courts until and unless their actions are extreme, unwarranted and unjustified. And, while many of us may view the recent actions by officers that led to non-indictments as extreme and unwarranted, few truly appreciate the protections given to law enforcement by our American justice system.

However, if qualified immunity were to be removed or changed by legislative action, then law enforcement officers could potentially be more accountable for their actions. Law enforcement officers would have to seek the path of least confrontation as their primary method of de-escalating situations.

No one can argue that police officers have a difficult job, can find themselves in challenging situations, and take on risks in their careers on a daily basis that the average citizen does not. However, there can be little doubt that those who watch us must be watched themselves in a meaningful way. However, protests – while cathartic – are not enough. Minor policy shifts and the presence of more cameras are not enough. If the public wishes to see meaningful change in a nation of laws, it must be to change the laws that govern the nation. If this fight were won by the number of protestors in the street, then by all accounts, the activists are winning. But it isn’t. This fight against excessive force by police is in the halls of state capitols across this country and in Congress. And in that fight, the activists are losing, badly.

Regardless of the outcome of these recent developments, we will continue to watch the watchers, even if what we can do is severely limited by law.


Bradley Keffer and Scott Barnhart,

Partners, Keffer Barnhart LLP