Police defend the controversial doctrine while activists and a former Republican Assembly candidate criticize it.
While some people argue police should have wide discretion in their actions with the public so they’re not constantly walking a tightrope between doing their jobs and being sued, Milwaukee minister Orlando Owens would argue officers shouldn’t get on the tightrope in the first place.
“That should not be the protocol—’Well, I’m just gonna do it,’” said Owens, a member of the Assembly Speaker’s Task Force on Racial Disparities, during a Thursday meeting discussing qualified immunity, the controversial legal doctrine that almost entirely shields police officers from civil liability when they violate someone’s statutory or constitutional rights.
Task force members discussed and debated the doctrine at length but ultimately failed to come to a consensus.
Qualified immunity has been a topic of concern among activists as demonstrations against police brutality took place across the nation in the wake of high-profile police killings of George Floyd in Minneapolis and Breonna Taylor in Louisville, Kentucky. Protesters have sought to weaken or abolish the doctrine, which has become so powerful since its inception in 1967 that even officers who knowingly infringe on someone’s rights can easily be let off the hook in a civil suit.
The task force, which was set up by Assembly Speaker Robin Vos (R-Rochester) as a substitute for taking up a special session package of police reform bills offered by Gov. Tony Evers and Lt. Gov. Mandela Barnes, includes a law enforcement subcommittee that met in Kenosha on Thursday. The task force has no legal authority to wipe out or alter qualified immunity. However, it can make informed recommendations to the state Legislature, which could in turn ban the use of qualified immunity in state-level civil lawsuits. Colorado banned qualified immunity last summer, while lawmakers in Maryland are currently discussing a bill to limit its use.
The US Supreme Court initially established the doctrine to protect individual government employees from civil liability as long as they acted in good faith and weren’t aware they were violating the law. Creating the defense, justices argued, allowed public employees to continue going about their daily duties without living in constant fear of facing a lawsuit.
At the task force meeting, West Allis Police Chief Patrick Mitchell took up that argument as he defended qualified immunity. Officers responding to calls would simply defer to police supervisors, who would in turn defer to their superiors, and so on, Mitchell argued.
“We would be in absolute gridlock, and we would get nothing done,” Mitchell said.
Owens, a former Republican Assembly candidate, argued it’s best that officers refrain from action if there is any doubt that what they’re doing is legal.
“I would rather my officers, if I’m going to be ultimately responsible for them as a person who pays their salary [through taxes], to be in the right—clearly in the right,” Owens said.
Studies have shown police officers do not take the possibility of being sued into consideration while they make decisions, according to nonprofit criminal-justice news site The Appeal.
Tomás Clausen, community engagement manager of the ACLU of Wisconsin, appeared at the meeting to argue in favor of either reforming or ending qualified immunity.
“The doctrine shields officers from civil liability for their unconstitutional use of excessive force and unconstitutional searches, and emboldens officers to take actions on the edge of the law without fear of repercussions,” Clausen said.
West Allis’ city attorney, Kail Decker, gave a presentation on qualified immunity and said the original intention behind the doctrine was good and it should not be abolished entirely. If the doctrine is outright eliminated, he predicted, municipalities would face an avalanche of lawsuits.
Assembly Majority Leader Jim Steineke (R-Kaukauna) echoed those concerns, saying “the litigious society we have become has gotten so ridiculous.”
Jim Palmer, executive director of the Wisconsin Professional Police Association, said he feared that if cops could be more easily held personally liable for damages, fewer people would become police officers.
But Decker admitted qualified immunity is flawed and that its expansion since 1967 has been used “inappropriately,” leading to highly questionable court decisions.
Qualified immunity can apply to police who knowingly violate rights, as long as there is no previous “clearly established” case with nearly identical details in which a police officer was held accountable. In practice, that requirement means plaintiffs can almost never win a case due to a lack of precedent, which in turn prevents precedent from being established.
Decker said he thinks Derek Chauvin, the former Minneapolis police officer who killed Floyd by kneeling on his neck for nearly nine minutes, could claim qualified immunity in a potential civil suit because there might not be another “clearly established” case with similar circumstances.
“The fact that I’m not certain that it’d be shot down, is a problem,” Decker said.
Decker said one possible solution to reform qualified immunity would be to add an additional requirement—for the government employee to have been acting reasonably. That could ensure extreme cases like Chauvin’s wouldn’t be able to be dismissed over the “clearly established” requirement alone, Decker said.
The group did not come to a consensus, but it is tentatively scheduled to meet March 11 at the state Capitol for a more rigorous discussion to begin the process of coming up with legislative recommendations. The task force subcommittee focused on education and workforce development meets again Monday.
Steineke Faces Fire Over Email
Before discussion began, several members of the panel took time to criticize Steineke for an August 2020 email UpNorthNews published in early February in which Steineke wrote that he saw the task force as “a political loser,” said the task force should have “guardrails,” and theorized that Republicans could use the group to make Democrats look bad. Thursday’s meeting was the first time the subcommittee that Steineke oversees alongside Rep. Shelia Stubbs (D-Madison) has met since the email’s publication.
“We came here to work at this table still, after being spit in the face, because we need something to take back to our communities.” said ReBecca Burrell, an activist and citizen member of the task force. “So your reputation, and the difficulty that you have to face politically—take off your shoes and put mine on.”
Steineke apologized for the negative attention his email, written the same day Assembly Speaker Robin Vos (R-Rochester) announced the task force, brought to the group. But Steineke defended himself, saying the email was written in a harsh political climate in which he and Vos weren’t even sure Democrats would participate in the task force. Democrats at the time wondered aloud if Vos’ task force announcement was merely a tactic to stall the Evers-Barnes reform package.
“You’ve got to remember the context of where we were,” Steineke said.
When Pam Holmes, a retired Milwaukee police sergeant, asked Steineke what his current thoughts on the task force were, Steineke said he is “more confident than ever” it will result in reforms. The task force initially had a deadline of January to issue its recommendations, but Steineke and Stubbs said Thursday that late March seems like the likely target now.
During the meeting, Stubbs was sympathetic to Steineke’s plight of being put in the position of needing to convince other Republicans to sign on to proposals they may find controversial or unacceptable. She said the task force needed to stick together and be unified to help Steineke get the support he needs.
“If there are problems where Steineke is stuck, we can help out,” Stubbs said. She added that the Milwaukee Bucks and the Green Bay Packers, which have had discussions with Stubbs and Steineke regarding the task force, are “willing to help us” drum up support as well.
In a brief interview with UpNorthNews after the meeting, Stubbs, who had previously refused to publicly comment on Steineke’s email, said she spoke with Steineke and Vos to tell them the email was “unacceptable” and “very offensive.”
But Stubbs said the task force’s mission remains in place.
“There are so many really good task force members here that wanted to keep moving forward on this work,” Stubbs said. “This is the only viable next step. And so we’ve come too far to quit.”