BACK STORY with DANA LEWIS

POLICE BRUTALITY (and Qualified Immunity)

August 26, 2020 Dana Lewis Season 2 Episode 3
BACK STORY with DANA LEWIS
POLICE BRUTALITY (and Qualified Immunity)
Chapters
00:03:04
Joanna Schwartz UCLA
00:21:26
Stephen Vladick Univ of Texas.
BACK STORY with DANA LEWIS
POLICE BRUTALITY (and Qualified Immunity)
Aug 26, 2020 Season 2 Episode 3
Dana Lewis

This week another shooting of a black man in America.  This time in Kinosha, Wisconsin. 

More calls for police reform echo through burning streets.  Defund the police has resulted in concerns of more crime. But, a serious conversation is taking place around the issue of qualified immunity.  Legal experts say qualified immunity is a legal shield for police officers that makes it nearly impossible to hold police accountable for violations of civil rights and there is a big push to amend the law. 

So in this BACK STORY with Dana Lewis, a conversation with two prominent law professors who lead us through understanding what is qualified immunity and what we need to do to reform police?

Stephen Vladeck is a Professor of law at The University of Texas School of Law, and Joanna Schwartz is a Professor of law at UCLA. 

Show Notes Transcript Chapter Markers

This week another shooting of a black man in America.  This time in Kinosha, Wisconsin. 

More calls for police reform echo through burning streets.  Defund the police has resulted in concerns of more crime. But, a serious conversation is taking place around the issue of qualified immunity.  Legal experts say qualified immunity is a legal shield for police officers that makes it nearly impossible to hold police accountable for violations of civil rights and there is a big push to amend the law. 

So in this BACK STORY with Dana Lewis, a conversation with two prominent law professors who lead us through understanding what is qualified immunity and what we need to do to reform police?

Stephen Vladeck is a Professor of law at The University of Texas School of Law, and Joanna Schwartz is a Professor of law at UCLA. 

Speaker 1:

Oh , there's protesters are out here trying to save the cops who did this should be arrested. And there's like probably hundreds and hundreds of people, but they were out here and the police started shooting with rubber bullets and then threw tear gas

stephen vladeck Law prof U of Texas :

Hi everyone. And welcome to another edition of backstory. I'm Dana Lewis. Don't just listen to one podcast here, subscribe and please share in this edition, another shooting in America of a black man by police fueling unrest, inflaming the st reets, furthering demands for dramatic change. The place Kenosha, Wisconsin, the police captured in graphic video of shooting. Jacob Blake, multiple times in the back. He's paralyzed his sister. Le t T etra, wo uld

Speaker 1:

You say the name, Jacob? Make sure you say father, make sure you say cousin, make sure you say son, make sure you say uncle, but most importantly, make sure you say human. This is nothing new. I'm not sad. I'm not sorry. I'm angry. And I'm tired. I haven't cried. One time. I stopped crying years ago. I am numb. I have been watching police murder people that look like me for years. I going to change.

stephen vladeck Law prof U of Texas :

Okay. The police will be charged as they are in many cases convictions sometimes because the criminal test is difficult. Did the officer believe he was threatened? Even if you and I don't think so, but the real justice can only come say families in civil lawsuits where someone can still be held accountable. A jury may find they acted improperly, and that brings us to something. No one has qualified immunity, which is the type of legal immunity. It's supposedly balances two things. The need to hold public officials accountable. When they exercise power irresponsibly in the need to shield officials from Harrison distraction and liability when they perform their duties reasonably. But in reality, qualified immunity has come to mean that even when officers act illegally or maliciously and cause serious harm courts refuse to repair the injury instead allowing officers to get away with misconduct. You think things should change. We'll listen because often police are shielded from accountability in criminal courts first, and then from civil action because of qualified immunity, which is you're about to hear in this edition of backstory, a growing number of legal experts thinks should be reformed in America or done away with All right . Joanna Schwartz is a professor of law at UCLA, and we're going to talk to her and she's going to explain everything we need to know about qualified immunity. If you want to , it's it's a little complicated.

joanna schwartz law prof UCLA:

It's very complicated. It's so complicated that I think that many judges and practitioners don't fully understand it.

stephen vladeck Law prof U of Texas :

If you were to kind of give me the headline quality qualified immunity means policemen can only be, can congenitally not be sued. They are protected.

joanna schwartz law prof UCLA:

Well, I would say it's slightly differently. So qualified immunity , uh , is a defense that was created by the Supreme court to protect government officials, including police officers from damages liability when they're sued for constitutional claims and the defense protects them , uh , unless they have violated what the Supreme court calls clearly established law. And what clearly established law means has changed over the decades of qualified immunities existence. But today I think it's fair to say that qualified immunity, shields, government officials from damages liability, unless there is a prior court case from that circuit or from the Supreme court with a very similar facts where it is held very similar back's unconstitutional,

stephen vladeck Law prof U of Texas :

Policemen does something that is questionable. Maybe it's a police abuse or, you know, racism involved. Um, if there's alcohol involved, then, then , uh, let's say the policemen took drugs for instance. And he was on duty. He is, he does not receive immunity at that point because that is established in law. That that was a rule and a regulation that, that he should have known about. And , and he's not gonna receive any protection civilly . Is that the idea?

joanna schwartz law prof UCLA:

Well , uh, I , I don't know for certain that that is true. Um , that that would be the conclusion. Uh, you can violate a, an internal police policy , uh, and not have violated clearly established law. So what, what this turns on is whether a court has previously held that similar conduct violates the constitution. And so, and it must be very similar. So there can be established if, well,

stephen vladeck Law prof U of Texas :

There has to be precedent slowly established, right? Where a court says, okay, that, that goes beyond reasonable conduct. The policemen should have known better and he is not going to be protected civilly. So it does the law developed or, or is it

joanna schwartz law prof UCLA:

So there's, there are two problems , uh , with qualified immunity that are, that are implicated by your questions. The first is that the Supreme court has said on the one hand plaintiffs have to find a prior case with sufficiently similar facts to clearly establish the law in order to hold an officer liable, the Supreme court has also told lower courts. You can grant qualified immunity without ruling on the constitutionality of the officer's behavior. So the Supreme court's instructions to lower courts essentially , uh , absolve them of the, of the obligation of ruling on the constitutional claim, which makes it even more difficult for plaintiffs then to find those cases. That's one point

stephen vladeck Law prof U of Texas :

There's an important, maybe we should kind of roll back a little bit to why is this important when you talk about police conduct and somebody's ability to Sue a policeman for misconduct to civilly ?

joanna schwartz law prof UCLA:

Well, it's important to be able to Sue a policemen for misconduct for a number of different reasons. One is that the plaintiff, the person whose constitutional rights have been violated, deserves their day in court and deserves compensation when their rights have been violated. That's something that was Korea , right? That was created by Congress in 1871, and still exists to this day. It's also a necessary in order to hold officers to some account for their conduct. Um, civil suits are one of the most powerful ways to be able to hold officers. Responsible officers are rarely criminally charged. Officers are rarely , uh , internally disciplined for their conduct and civil suits often remain the one , uh, most viable alternative for holding officers , uh, liable. And so when qualified immunity protects officers who have even those who have violated the constitution, simply because there was not a prior case on point , uh, that means that the person receives no compensation. The officer receives no consequences and is essentially told as justice Sotomayor has said that they can shoot first and think later. Um, and that's a terrible message to send to the individual officer in the case, and to law enforcement officers, more generally as they , uh , read these opinions,

stephen vladeck Law prof U of Texas :

Everybody's talking about the George Floyd case. So if a former police officer Derek Shovan is convicted of murdering mr. Floyd, it's quite plausible that a court could refuse to hold him liable for violating Floyd's constitutional rights of lawyers were unable to point to an earlier case. Making clear that the specific action that Shovan took, which was kneeling on a restrained person's neck for more than eight minutes was unconstitutional.

joanna schwartz law prof UCLA:

That's right. I think that for political reasons, it's very unlikely that any civil suit brought by the family of George Floyd is going to be litigated in that way because of the amount of controversy around that case. My guess is that that case will be settled rather quickly. But if you look at a similar, there's a similar case that the Supreme court this year decided not to hear a case called Baxter versus Bracey . And it was a case in which , uh , a burglary suspect was a lie as sitting down with their hands in the air and police officers, nevertheless released their dog on him who mauled him. And

stephen vladeck Law prof U of Texas :

After he had surrendered, he's got his hands, me ,

joanna schwartz law prof UCLA:

He had surrendered hands up in the air and he, the officers were granted qualified immunity, even though it was very well established that you cannot release a police dog on a person who is , uh, who has surrendered and who is not posing any threat. The reason that he was granted qualified immunity was that the prior case with similar the most similar facts was a person who was lying down when he was attacked by the police dog. And the sixth circuit said a case where a person is lying down is not, does not have sufficiently similar facts to a case with a person seated with their hands in the air to clearly establish the law.

stephen vladeck Law prof U of Texas :

Sounds ridiculous.

joanna schwartz law prof UCLA:

It's ridiculous. It is ridiculous. And if you, if you wanted to know another reason why it's ridiculous, I've just recently done a study looking to understand what police officers are actually trained about when it comes to these cases, because the Supreme court says we need these prior cases with sufficiently similar facts to put officers on notice. This is a complicated area of the law, and they need direct guidance about the constitutionality of their behavior from prior decisions. But when I looked at California trainings , hundreds of them around the country, I found that officers are never trained about the underlying facts and holdings of these cases that would supposedly clearly establish the law. So officers aren't even learning about these cases , um , that the Supreme court says are necessary to put them on notice.

stephen vladeck Law prof U of Texas :

Why do they need to learn about the cases they just need to be trained in proper conduct?

joanna schwartz law prof UCLA:

I think that that's right, but the, the, I, I'm not suggesting that the, that the best way to train officers is to educate them about the hundreds or thousands of cases. Um, but rather, you know, that the Supreme courts , uh, demand that plaintiffs come forward with these cases with virtually identical facts is premised on the notion that the officers would somehow read them, absorb them under re remember the facts and recall them in the, in a moment in which they are about to use force, which is unrealistic on many levels, including that officers aren't trained about these cases.

stephen vladeck Law prof U of Texas :

What is the answer as far as you're concerned,

joanna schwartz law prof UCLA:

I think that we should do away with qualified immunity altogether. And there are calls to do just that across the ideological spectrum, among advocacy groups, judges , um , and scholars, I, that we're qualified immunity eliminated. There would still be multiple protections in place for law enforcement who made good face mistakes in split second decisions. The constitution, the way in which the Supreme court has interpreted the constitution already protects officers when they make mistakes that are in good face and indemnification agreements , uh , are in place across the country. Meaning that officers even when they are found liable, do not personally pay the settlements and judgments in the cases brought against them. So the eliminating qualified in the city, the taxpayers, well , ultimately the taxpayers do.

stephen vladeck Law prof U of Texas :

And why would that then result in any better conduct by police if they never have to pay the check anyway? Well,

joanna schwartz law prof UCLA:

One that is already in place, so that is already a problem. And one that , um, that lawmakers are currently beginning to think through. Um, but you know, even if officers are not paying themselves , um, there are ways in which , um, you know, cities should take better account of their officers and try to learn from those lawsuits. That's also something that cities don't do well enough, but there's a lot of problems, but while eliminating qualified immunity, wouldn't create more problems.

stephen vladeck Law prof U of Texas :

Isn't the better answer to criminally prosecute policemen who released the dog on the person who's just surrendered or kneels on somebody's neck resulting in deaths . And I mean, isn't the , isn't the criminal prosecution, really the answer to cleaning up police behavior and then better training, and then banning those officers from going on and serving other police departments because they do do that in the U S

joanna schwartz law prof UCLA:

Uh, different people have different views about this. Um , I'm really convinced by , um, a scholar named Kate Levine. Uh , who's at Cardozo , um, who says the answer really isn't prosecuting the police, if it , or to say that , um, prosecuting the police adds to , um, broader , uh, problems in , um, criminalizing behavior. And , um, and that we may want to think about other tools of , of reform. I think that , um, to my mind , uh, the best solution would probably be , um, one in which cities paid much more attention to the information in these suits and took decisive action against officers , um , who had engaged in wrongdoing, which could mean , um, terminating them, preventing them from being rehired anywhere. Um, I do think that there are financial consequences that could be imposed on , um, depending on the severity of their conduct. So I see that there's, there's a lot of different tools that could be , um , put in effect and criminalization prosecution of officers is certainly one of them, but it's not my, not my first choice.

stephen vladeck Law prof U of Texas :

What do you think that most police officers think that , uh, you know, you're not going to catch me and if you do, you're not going to be able to get me in court anyway, and it's not going to cost me anything. So I have a license to behave. How I want, is that, is that how some people think about what's going on?

joanna schwartz law prof UCLA:

Well, I certainly can't, can't claim to know what's on every officer's mind, but I do think that the system , uh , does create those, those kinds of , um, incentives. And certainly if you , um, you can read publications that are geared toward law enforcement that talk about the importance of qualified immunity as a shield. Um, and so, you know, I think some people do hold that view, whether it's framed in exactly the way you've described , uh, I'll leave it to , to , uh , folks in law enforcement to know

stephen vladeck Law prof U of Texas :

I may not have framed it very well, but I gave it my best shot. You wrote, there is a growing consensus among court scholars and advocates across the ideological spectrum that qualified immunity doctrine is legally unsound, unnecessary to shield government officials from the costs and burdens of litigation and destructive the police accountability efforts. Is there a growing consensus because I mean, I've talked to a few legal analysts, some of them, former police officers who say this is a nonstarter they're never going to re remove , um, qualified immunity.

joanna schwartz law prof UCLA:

Well, there is a growing consensus. Um, if you look at , uh, opinions that are being written by judges around the country, there is certainly a , a slow trickle of opinions , um, from judges, including, you know, Trump appointees , um, who are critical of the doctrine , uh, justice Clarence Thomas , uh, has called for a reconsideration of qualified immunity. Justice Sotomayor has called, or has criticized qualified immunity. And , um, there is also a collection of advocacy organizations that truly are across the ideological spectrum that have submitted multiple briefs to the Supreme court , uh, calling on the court to reconsider qualified immunity. And those organizations include the Cato Institute and the ACL oo and NAACP legal defense fund, and the Institute for justice , um, and organizations that are, that are truly , um, that , that, that you don't think of as agreeing on on many things do agree on this one force , Oh, I was gonna say law enforcement officials , um, uh, do still call, you know, qualified immunity reform proposals , um, a poison pill. And that was, that was how Republican editorial leadership described , um , efforts to qualified immunity reform. I am puzzled when I hear , uh, the strong line in the sand being drawn about qualified immunity from defenders of the doctrine , um, because all available evidence suggests that the doctrine does not function in the way that the defenders of the doctrine say that it does.

stephen vladeck Law prof U of Texas :

Final question to you is that when you look at what's happening across America right now, from the demonstrations to the defunding, to the deep debates about police brutality and police reform , um , do you think that there's progress, do you think that we are finally coming to grips with just reoccurring situations of abuse or, or do you feel that , um, you know, we're , we're spinning in circles right now? I mean, if you look at it as a law professor and how it's developing and how it may develop in the courts, is there something you feel it's positive or do you feel it's a negative thing happening?

joanna schwartz law prof UCLA:

I absolutely think that it's a positive thing happening. There are conversations ongoing right now , um , in state legislatures and in Congress , uh, about police reform, more fundamental than I've seen in awhile . And , uh, States particularly are, are passing legislation that is very exciting. Uh, Colorado, the Colorado legislature passed a statute that, that changes , uh, the right to Sue and, and police policies and various ways that I think that are really truly innovative and interesting, but we will see , um, history will , will tell us whether , um, whether there is true change in this moment. Unfortunately, we have had protests , um , in the streets , um, and very serious national conversations about police violence against black men in particular , uh, repeatedly over the past decade. Um, and , uh, I truly hope that this is the sign of , of change to come. Um, but I think history is going to have to get the last word on that.

stephen vladeck Law prof U of Texas :

It may be one of the biggest issues in the upcoming election in November. I mean, COVID-19, but also, you know, the rule of law and policing.

joanna schwartz law prof UCLA:

Absolutely. Uh , it , it should be , uh , I think that we have been , um, we have been living in a time , uh, that , uh, we have been living in a period of police violence and misconduct , um, without, without addressing some of these fundamental issues and essentially letting police govern themselves. Uh, and I, and I think that we do need to have very renewed, serious conversations about the role of police in our society and the role of government in , uh, policing the police.

stephen vladeck Law prof U of Texas :

Joanna Schwartz is a professor of law at UCLA. And thank you so much for your time. And it's you get double, triple thank yous for doing this on your vacation. If you don't mind.

joanna schwartz law prof UCLA:

I it's my pleasure. I'm , I'm happy to talk about qualified immunity and police reform with you even on vacation. Oh , there's a dedicated professional. [inaudible]

stephen vladeck Law prof U of Texas :

All right . Let's move now to Texas. And Steven Vladik is a professor at the university of Texas school of law. And , uh , hi, Steven , how are you in, COVID-19 in America? We're all in Europe , uh, you know, taking big breasts , watching what's happening in America. Yeah. I mean, we're still pretty well locked down here, although I can , uh, you know, we're coming up on return to school in the next couple of weeks, it's going to put a lot of pressure on, on the numbers, on our governments and the, I, you know, I'm , I'm, I'm a little nervous about where it will be a month from now, but, you know , I just have to take it one day at a time like us here too, but I mean , uh , it's a runaway train there and my best to you and your family. Listen, we just finished speaking to Joanna Schwartz at UCLA who led us through, you know, a fairly good explanation of what is qualified immunity. So essentially, would you agree that it's a legal shield for police officers? Um, that civil rights critics say it makes it nearly impossible to hold police to account for violations of civil rights. I agree with that. And I would go one step further, which is just that the way these cases are litigated in our courts, it also makes it very hard for the courts to actually establish new rules, to actually say, and going forward, even if this particular officer in this particular case is not liable, you know, it's actually hard for the court to say future officers will be because of the way the litigation works. So it's , it's both a shield for officers at the current moment. It's a show for officers in the moment in which they're being sued, but it also operates in effect to shield future officers as well, by making it harder for courts to create clear principles that will bind future officers. And I think that's an equally important part of the story. Why should police officers ever serve if they're going to be civilly liable? Well, I think there , I mean , I think there are two responses. The first is , um , as, as Joanna may have pointed out in most of these cases, police officers are indemnified by their jurisdiction . So, you know, it's really mostly a fiction that we say these officers were personally liable. As long as these actions, these acts of misconduct are taking place while they're on the job. More often than not almost every case. I'm aware of, it's the locality, that's going to be on the book . But also, I mean, the liability question, I think there's a question of, at what point has an officer have gone so far over the line that we think he should no longer be able to claim who is acting in good faith. I mean, should there really be no consequences for officers who act in no in violation of constitutional rights, you know, without sort of we're in the non gray area cases? I think the problem is is that at its core qualified immunity was meant as a gray area problem, that we should allow a little bit of, you know, marginal broom at the border for officers to get the benefit of the doubt, but the way courts have interpreted it, the way courts have expanded, it it's become much, much larger. So that now not only are we protecting authors in the gray area, we're protecting officers who are clearly and unquestionably violating the rights of law, abiding people on the street ,

dana lewis :

Civil process important when you have a criminal process because of the policemen steps outside the bounds of what is proper conduct, and he does something criminal while he has somebody in his custody or is attempting to take them into custody. There he's criminally liable. Isn't that good enough?

stephen vladeck Law prof U of Texas :

Well, so I think there are two separate reasons why it's not good enough if the first is criminal liability is of course a much higher bar to establish criminal liability. You have to prove beyond a reasonable doubt that the officer didn't just violate your rights, but actually committed some crime. Um, so there are plenty of violations of constitutional rights,

dana lewis :

An example to make it a little more digestible.

stephen vladeck Law prof U of Texas :

Sure. I mean, if a police officer walks up to me on the street and arrest me with no probable cause with no reason, reasonable suspicion with no basis for a restaurant and throws me in the back of his police car and hauls me off to jail. And I sit there for, let's say, 14 hours , um, he has not committed a crime. Um, he has committed a tort he's , he's committed a false arrest , um, but there's no , uh , Texas statute that makes it a crime to make a wrongful arrest. Um , if you assault me, that's a different matter, but I think, you know, the constitution protects a heck of a lot more than just a right to be free from having the government commit crimes against you. So that's the first problem. The second problem is, you know, crimes are prosecuted by the same government that this officer represents. And so in many, many cases, even when the officer has not just cross the civil line, but has crossed the con the criminal line , um, there are powerful disincentives on the part of local prosecutors to throw the book at one of their own. Um, and so for all these reasons, you know, this is why we think civil liability is so important, not because we're trying to actually exact as huge damages from these officers, but because it is the most effective, efficient, and independent way of compelling compliance with constitutional rules and norms.

dana lewis :

So if the lawyer in the George Floyd case , um, you know, who is now facing a murder charge, if he is not convicted , um, how does this apply to that case as a, as a possible example of where the family seeks justice through the action and, and how would they be blocked into qualified immunity then?

stephen vladeck Law prof U of Texas :

So, I mean, the family could bring a wrongful death action against the Robyn officers and the officers would surely raise as a defense. Um , the notion that even if they violated Floyd's constitutional rights, it wasn't clearly established at the time of the interaction at the time of Floyd's murder , um, that the officers were actually acting in a way that was clearly established. In other words, that it's not just, did you, did you violate the constitution it's at the time of the relevant action? Should it have been clear to you that what you were doing was unconstitutional? And so the officers might, for example, try to point to , um, other cases hold him that that kind of force by itself was not per se unconstitutional know , I actually think the Floyd case has probably a weak example of qualified immunity. I think there's actually a good chance that the families will , will be able to do that. The family were able to get around that defense in that case, but for every case like that, where there's video tape , um , and where it just so clear that what the officer's doing was unconstitutional. Um, there are so many more cases where there's no videotape where there's a credit. He said, he said , um , where the author might have some basis of claim that he thought his life was in jeopardy. Um , and so this is the problem is that George Floyd, even though it was clearly the trigger for this conversation is actually an exceptional case with regard to how easy it is in a case like that to hold the officer accountable, it's much, much harder in the run of the mill case to prove that the officer acted with such malicious intent to prove that the officer was not under threat to prove that the officer was using grossly excessive portions of the circumstances, that's where qualified immunity is such an obstacle. And that's why so many folks believe that qualified immunity leads to police officers who, who, who act like the ones did in the George Floyd case, because they don't reasonably fear what would happen to them if they cross the line

dana lewis :

Qualified immunity. And I know I've kind of asked you this already, but I'm not clear on the, on the answer. How does qualified immunity make justice be delivered in the case of where your rights have been violated or whether where , you know, somebody who sues a family member, Susan in George Floyd's case, for instance,

stephen vladeck Law prof U of Texas :

I mean, the only way to qualify that is usually an obstacle to justice. I mean, the only way that you usually get around qualified immunity

dana lewis :

Of qualified immunity, if you can, if they can amend the laws in America, how will that lead to a better sense of justice? Because that policemen in , as you said, at the beginning of the interview, won't have to foot the bill anyway.

stephen vladeck Law prof U of Texas :

So, I mean , again, I think because I think that's a bit of a mistake that think of the question as will officer Smith, right. Have to pay out of his pocket. To me. I think the real question is how do we ensure that there's every incentive for law enforcement officers to act in a way that is constitutional unlawful , whenever they're engaging with citizens and the removal, or at least water and down and qualified immunity, I think would be a big step in that direction. Not because it would open the pocket books of these officers, but because it would create powerful incentives for police departments for , um, you know, police unions for all of these entities to actually ensure that their officers are better trained, that their officers are more responsive to constitutional and statutory lines. And that there's a lower incidence of officers acting in a way that could reasonably be claimed to be unconstitutional.

dana lewis :

Would it also make some of these police departments , uh, in jurisdictions screen people properly, and also if they start getting a series of complaints against that same

stephen vladeck Law prof U of Texas :

I'm officer w would it be

dana lewis :

A good incentive then for them to say, you know what, this guy is just too big, a risk let's take them off the street.

stephen vladeck Law prof U of Texas :

Yeah. I mean , I think that it shouldn't be that controversial and it shouldn't be that difficult to show that the more we're going to hold officers who are indemnified liable for constitutional malfeasance, the more incentive that the police departments are going to have for training the officers correctly for screening them correctly for getting rid of bad apples , um , because otherwise it's going to be the departments that really feel the pinch in their bottom line when they're losing all of these damages suits. And the biggest problem with the status quo in the United States today is that there's almost no impact to the bottom line when these lawsuits go forward because the police officers invariably, when them,

dana lewis :

If you represent a pretty good ground swell of legal opinion, that qualified immunity should be amended or disappear, who opposes it

stephen vladeck Law prof U of Texas :

Well, I mean, I think there's a lot of opposition from police unions. Um, I think that there's a lot of opposition from local and state governments because they're the ones who are going to have to be footing the bill if you've got real qualified immunity. Um, and frankly, I think there's a real concern on the part of especially Republican politicians , um, that this is effectively punishing good police officers along with the bad, I mean, there's, you know , no one's going out there and defending the police officer who clearly crosses the line. I think the concern is, is there going to be collateral damage in Chile , you know, appropriate conduct by good faith officers in disincentivizing people from even joining the police department in the first place?

dana lewis :

We need a bit of chill on the street right now though.

stephen vladeck Law prof U of Texas :

Well, I mean, my reaction is that, you know, I see those as features, not bugs , um , right. But that also, I think you can, all, it would be easy enough to tell her. I mean, I, I, this is where I think the nuance of how you reform qualified immunity really matters. I think it would be easy enough to tailor reforms where you're still not punishing officers who are acting completely in good faith, right. And consistent with constitutional rules, but where you're making it a lot easier to recover in cases in which officers have crossed the line. You know, it's , uh , the nuance matters here, but I think the nuances achievable. And so I think most of the critiques are sort of aimed at the low hanging fruit of a world in which it's just open season to Sue law enforcement officers. I don't think any of the more sophisticated proposals are suggesting we'd go quite that far in the other direction.

dana lewis :

This is, this is going to happen that we'll see qualified immunity.

stephen vladeck Law prof U of Texas :

Um , I think there's zero chance. It happens in this Congress. Um, you know, whether it becomes part of a series of reforms in a future Congress, I think of course depends on what happens in the elections this November. Um, I do think that if we see, you know, Democrats retake the Senate , uh, president , you know, if we , if we see a president Biden come this time next year, you know, some modicum of reform has been to be part of the conversation. I would be surprised frankly, if the reform is to completely get rid of qualified immunity, but, you know, there are so many, I think, salutary things we can do to just make it harder for officers to invoke and to make the standard a little more favorable to plaintiffs. And I think that would be such an important step even of itself. Can I just ask

dana lewis :

He was an American now after watching the, the George Floyd case and then the demonstrations spread across the country from Washington to what's been going on in Portland and ,

stephen vladeck Law prof U of Texas :

And in Chicago, which is a very different story, but do you,

dana lewis :

Do you feel this year in a positive environment that , that finally America is coming to grips with some of the police abuse and race relations that it needs to finally confront or is it

stephen vladeck Law prof U of Texas :

Just , just become so politicized , um ,

dana lewis :

That , you know, it's , it's kind of divided the left and the right even further, and

stephen vladeck Law prof U of Texas :

The progress is debatable. I mean, how are you feeling yourself? I think it's a bit of both. I mean, I actually, I think there's been a very healthy , um , public focus on a conversation that's been in the dark for far too long. Um, I think that, you know, for the first time that I can remember , um, it's becoming clear to larger and larger constituencies of Americans that platitudes aren't sufficient , um, that thoughts and prayers are not enough that actually meaningful reform is necessary. Um, but I think that, you know, the, the momentum that this movement will have and its ability to actually record any successes has been, it depends dramatically on what happens at the ballot box this November. Um, and so, you know, I think that , uh , my feeling is sort of both , um , a cautious amount of optimism and a huge amount of anxiety. Um, because I think , you know, it's , there's just so much about the future of our , um, relations with our government about the sort of interpersonal reactions we have with our fellow Americans. That's going to turn out what happens at this November. And so I think this is, you know, it's by far the most important election in my lifetime. Um, I think that's the most important election in a lot longer than that. And I think it's important in so many ways, not the least of which is what's going to happen to this conversation. Um , and to the sort of the, the structure and, and discussion about race relations in this country. Um, come January, 2021, Steven ,

dana lewis :

Thank you so much professor of law at the university of Texas. Great to hear you.

stephen vladeck Law prof U of Texas :

That's what happened.

dana lewis :

And that's our backstory on qualified immunity and justice in America. Here's my plea. We are a growing podcast and worth your time. If you support us, all we ask is you share the link, tell people about backstory, get them to subscribe. And so we can bring more episodes your way. I'm Dana Lewis. Sincerely. Thanks for listening. And I'll talk to you again soon.

stephen vladeck Law prof U of Texas :

[inaudible] .

Joanna Schwartz UCLA
Stephen Vladick Univ of Texas.