Earlier this past year, on June 27, 2019, bill A-4553 passed through the New Jersey General Assembly and sought to grant qualified immunity, also known as civil immunity, to police officers working at private universities. At the University, this legislation would have granted officers from the Department of Public Safety (DPS) immunity from civil liability in court, except for when a grievance violates a “clearly established” right, as long the officers can prove that they were acting “in good faith” during the event in question. The eagerness to accept the benefits of such a bill ignores the underlying problem it can cause: inefficient protection of community members’ rights in civil litigation which involves police misconduct.
From the University’s perspective, it has good reason to be supporting this bill — which is probably why DPS submitted a publicly available testimony doing just that. According to DPS’s administrators, this bill would simply expand the protection that’s already granted to campus police at public universities to ones at private institutions. However, it assumes two things: first, that qualified immunity is a sensible judicial policy, and second, that the justice system is infallible in its resolution of police misconduct cases. Yet, the opposite is true: qualified immunity has been used to protect officers when they violate constitutional rights. Most alarmingly, it’s been used to recuse officers who would otherwise be prosecuted for acts of police brutality or false arrest.
New Jersey is not short on cases which exemplify this. In 2017, state police asked Denise Brown if they could search her house for stolen goods; she refused and asked for a warrant. At that point, they believed that if they let her back in her house, she would destroy the evidence. They gave her two options: either to wait outside until they got a warrant, or to re-enter her house with a police escort. The Appellate Court decided that the state police did in fact violate her rights and that those rights were part of a clearly established precedent. The Supreme Court overturned this decision, saying that qualified immunity applied because case law regarding securing a house was ambiguous while a warrant was pending. This meant that state police did not violate a clearly established right.
It might seem obvious to an outside observer that if the state police violated her rights, then she is deserving of due recourse. Of course, the execution of justice could never be that straightforward. Qualified immunity plays a special role in preserving the argument that if officers act in “reasonable” ways,* then they shouldn’t have to bother with the costs of the trial itself. This becomes exponentially more problematic when wrestling with the problem of police brutality. As it has been noted in the example listed here, the courts are entirely preoccupied with the question of whether the rights that the officer potentially violated are clearly defined. This nebulous requirement allows judges to rule in ways that ignore the damages dealt by law enforcement.
A less acknowledged issue is the privilege that government officials are granted via the protection of new understandings of constitutionality. If there were ambiguities regarding case law in civil litigation, then the court would determine the constitutionality of the laws and whether certain actions are lawful. Those rulings would then be applicable to the relevant parties involved with the case. This doesn’t apply to government officials like members of law enforcement. They don’t need to act in a lawful manner as long as what they are doing is ruled as subjectively reasonable. This privilege is blatantly unjust when civil immunity is only meant to protect certain actors from liability when they should already be doing their duties justly and reasonably. In the end, the concern of the rights of private persons goes beyond what can be contained in questions of public figures performing duties reasonably. The court can throw out a case and ignore this question of performing reasonably when case law isn’t comprehensive, when in fact said case should be instrumental in determining the legality of the action (such as illegally entering a house without a warrant) and presenting recourse to victims whose rights were violated.
Bill A-4553 was ultimately not passed by the state senate. Despite this, the emergence of the bill and the University’s willingness to publicly support it without consideration for the greater context should make the University community wary. It reflects the lack of concern the University and DPS have for holding officers accountable and for law enforcement’s consistent abuse of power in this country. If anything, it shows that the University does not want to impose a standard of accountability for those in positions of power. The concerns held by disadvantaged communities towards law enforcement are valid and are not insulated from our lives here at Princeton, and we should hold law enforcement authorities to higher standards of accountability — starting with the ones on our own campus.
*Beginning in 1982, civil immunity case decisions were based on the plaintiff’s ability to convince a judge that any “reasonable” person would not have violated his or her rights in the given situation. Later, the terminology was changed so that civil immunity for police officers would apply unless there was a violation of clearly established law.
JD Copeland is a first-year, and he can be reached at firstname.lastname@example.org.