It is frequently said that actions have consequences. That is as it should be, because when those who act in ways that harm others face few or no consequences for doing so, they are more likely to continue acting in ways that harm others. And although most of us try to avoid hurting others because it is morally wrong to do so, the awareness that we are likely to be held accountable if we act in ways that harm others is an additional incentive to behave responsibly.
In our society, we have tasked law enforcement officers with identifying those among us who may have acted in ways that harm others and bringing those people before the judicial system so that, if found guilty of crimes, the perpetrators can be held accountable. To enable officers to do this job, we have given them a degree of authority that private citizens generally do not have to require obedience to their commands and to arrest and detain those suspected of wrongdoing. But this authority has always had limits — most importantly, the limits the people themselves identified in our state and federal constitutions. The question is, what happens when law enforcement officers exceed the constitutional limits on their authority?
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Congress attempted to answer that question shortly after the end of the Civil War and the ratification of the 14th Amendment when it passed the Enforcement Act of 1871. A crucial part of this statute empowered citizens to sue state actors who had deprived them of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States. But rather than treating this provision the way it was intended, as a powerful tool for holding officials accountable when the officials had violated citizens’ rights, the U.S. Supreme Court created out of whole cloth the idea of “qualified immunity.” In other words, the officials could only be sued if they violated a right that, in the opinion of the courts, was “clearly established” at the time the violation took place.
In practice, this has meant that courts only allow citizens to sue public officials in extraordinarily rare circumstances. Federal courts of appeals have recently held that citizens could not sue police officers who allegedly stole $225,000 in cash and rare coins; a police officer who, on his second attempt to kill a family dog that was not threatening anyone, accidentally shot a 10-year-old who was lying, face-down, 18 inches away; or a social worker who, without a warrant, strip-searched and photographed a 4-year-old girl while allegedly looking for signs of abuse. And, of course, qualified immunity has also frequently prevented victims of police brutality from holding to account those who wronged them.
A huge portion of the grief and outrage that has erupted time and again over the past several years has stemmed from a feeling that, particularly where the poor and people of color are concerned, police officers are allowed to act with impunity. Although Article I, Section 14, of the Missouri Constitution promises that courts will afford “certain remedy … for every injury to person, property, or character,” many have lost confidence that those responsible for beating or killing members of their community will ever be tried or convicted of criminal offenses, and qualified immunity makes it seem similarly unlikely that the victims could successfully vindicate their rights in a civil lawsuit.
A consensus has developed — crossing all party and ideological lines — for the proposition that qualified immunity is an evil that should be undone. At the federal level either the Supreme Court or Congress could undo it, but thus far neither has seen fit to act. Justice in Missouri, however, does not need to wait on Washington — the Legislature can and should adopt a Missouri statute that allows citizens to sue government officials who have violated citizens’ constitutional rights. A huge number of people are crying out for reassurance that their lives and their rights matter. Our state government owes them that reassurance. Gov. Mike Parson should call the Legislature into special session for the purpose of considering a bill that would allow victims of constitutional violations to seek justice directly against those responsible for those violations.
Dave Roland is the director of litigation for the Freedom Center of Missouri, a nonpartisan, nonprofit law firm that advocates for the protection of constitutional rights.