Any hopes for striking a bipartisan deal for federal reforms of policing practices all but evaporated when the issue of qualified immunity was taken off the table. 

Qualified immunity is a legal doctrine introduced by the U.S. Supreme Court in a 1982 decision that shielded White House aides who retaliated against a whistleblower from civil liability. Their actions were undertaken in response to orders that came from former President Richard Nixon. 

A majority of the justices at the time expressed concerns about the impact of holding to account government employees who violated the constitutional rights of others while carrying out the duties of their jobs. Accountability, they reasoned, would make it more difficult and costly for government workers to do their jobs. 

To overcome qualified immunity, those whose rights were trampled must show the constitutional right violated was one that is "clearly established" — a bar courts raised higher with each new claim. The doctrine, as it developed during the intervening decades, shields bad actors unless the person alleging the constitutional violation can point to a previously decided case from a court within the jurisdiction that presents facts and circumstances precisely the same.

Similar facts and circumstances rarely count. As a result courts have granted qualified immunity to police who, according to the Institute for Justice, "stole hundreds of thousands of dollars because there was no earlier case holding that stealing is unconstitutional." 

The Ninth Circuit Court of Appeals acknowledged in a footnote included with its decision in the case that theft is considered "morally wrong" by “virtually every human society.” That principle, however, did not "answer the legal question presented."

The way this doctrine has evolved effectively places those charged with enforcing the law above the law. It frees them from the consequences of bad acts and erodes the protections envisioned by the architects of this constitutional republic.  

National organizations representing the nation's law enforcers argue against abolishing, or even reforming, the doctrine. Some dislike the idea that departments might have to take responsibility for the acts of rogue officers, and others fear an avalanche of frivolous lawsuits would follow. 

What is wrong with holding departments accountable for hiring decisions? Carefully screening those who will be armed while policing neighborhoods in our communities seems like good public policy. 

Institute of Justice lawyers Anya Bidwell and Patrick Jaicomo wrote in a recent op-ed the failure to hold bad cops accountable makes it more difficult for good cops to do their jobs. For those "law-abiding citizens" who "have assaulted, robbed, falsely imprisoned ... (or) killed," the doctrine's use to shield bad actors only adds "insult to their physical injuries."

The most harmful aspect of this judge-made doctrine is the damage done to constitutional principles of liberty and justice. Once those ideals fade, this nation will surely follow.

D.E. Smoot covers city/county government for the Phoenix. 

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