Ethan Dursteler: Utah should lead in reforming qualified immunity

Police officers should not be allowed to get away with violating our constitutional rights.

Imagine you are enjoying your annual family Memorial Day barbecue. After an evening full of laughter and good food, you are about to wrap things up when a stranger runs into your backyard, pursued closely by several police officers. The officers demand you and your family to the ground, and you comply. The stranger is subdued by the police, and you think that the ordeal is over.

Just then, your family dog walks out from behind the bushes to see what the commotion is all about. One of the officers, to your surprise, begins to fire at the dog. When the shots stop, you breathe a sigh of relief as the dog is unharmed, but that relief is immediately replaced by horror when you see your son lying in a pool of blood.

Naturally, you seek justice for this senseless act. Your efforts to seek recourse through the criminal justice system are complicated when the officer who shot your son asks the court to dismiss your case, citing a legal doctrine you have never heard of called qualified immunity. At first glance, you think you have this case in the bag and for a moment, you do. A judge denies the officer’s request, stating that the unlawfulness of his conduct is “very obvious to every objectively reasonable officer.” This judge is eventually overruled on appeal, and you are left with no compensation for the senseless maiming of your child.

This horrible situation is the reality for the Corbitt family, who have appealed to the Supreme Court for recourse and whose case has been used to illustrate the need for common-sense reform of qualified immunity.

In what seems to be a stubborn determination to continue our nation’s spiral towards culture war oblivion, Democrats and Republicans argue past one another without acknowledging similar goals. No one wants public officials to escape accountability when they violate our constitutional rights. Qualified immunity, as it is currently constituted, allows officials to do just that.

It is important to understand what qualified immunity is, and what it is not. Qualified immunity is a legal provision that protects government officials from being held personally responsible for unconstitutional actions. It is not simply a liability shield that protects police officers if they make a mistake. The laws of the United States already do that. Rather, it is a doctrine that asserts that police officers can violate the constitutional rights of American citizens, and not be held accountable.

Some politicians argue that if qualified immunity is reformed, it will deter police from doing their jobs. This is false. The United States’ standards for determining whether a police officer violated the Constitution are already highly deferential to police officers. Under established law, without qualified immunity, even if police arrest the wrong person or determine to use force in a way that turns out to be excessive, they are cleared of wrongdoing, if they were acting reasonably. Qualified immunity only comes into play when an officer has acted objectively unreasonably under all the circumstances.

Last legislative session, the Utah Legislature failed to advance a bill that would reform qualified immunity in reasonable ways. The proposed legislation would require police to obtain insurance, like malpractice insurance held by physicians, that would pay out every time an officer was proven to have blatantly violated an individual’s constitutional rights. This would weed out bad police officers, as repeat violators would eventually become “uninsurable” and therefore unable to hold a job in law enforcement.

The bill would also do away with qualified immunity as a defense against civil suits brought against police officers. Rather than simply being able to plead qualified immunity, officers that are accused of violating constitutional rights would be required to plead their case before a judge and jury.

Our republic was founded on the very idea that all human beings are created equal and that governments exist to protect the natural rights of citizens. Qualified immunity, as it is presently construed, is an affront to this founding American ideal. Utah should be a leader in making common sense reforms to hold police accountable and protect the natural rights of its citizens.

Ethan Dursteler

Ethan Dursteler most recently worked as the government affairs and public policy coordinator for the National Football League. Prior to his work with the league, he was a staffer for Rep. Rob Bishop of Utah. He lives in Logan.