By Barbara Bellinger, Capital News Service
Police and other Michigan government employees could be sued and held liable if they hurt or kill someone while on the job, under proposed legislation working through the state legislature.
Current, qualified immunity shields government workers from lawsuits for gross misconduct or negligence while on duty.
A police reform package pushed by the state House of Representatives’ Democrats would reduce the blanket protections. They say it would allow police departments and other government agencies to more easily weed out bad apples.
“If you go over, above and beyond, outside the scope of your duties that are spelled out, there has to be some accountability,” said co-sponsor Rep. Tyrone Carter, D-Detroit, a 24-year veteran of the Wayne County Sheriff’s Office. “And the general public is tired of paying for lawsuits for officers for their outrageous, egregious conduct.”
Locally, Kent County’s top law enforcement official is quick to define that qualified immunity is much more than simply a policing issue, and says changes are unnecessary.
Qualified immunity “is a very complex term, but simplistically put, it is something that protects an individual from the government, an individual who is a representative of the government — it may be a police officer but it may be the sewer guy or it may be someone from the health department,” Kent County Sheriff Michelle LaJoye-Young said in a recent interview with WKTV. “It protects them from being held liable for a decision they make if that decision is in compliance with local laws, policies and procedures of the department, and doesn’t act in a way that is irresponsible, outside of their direction.
“The consequences for taking qualified immunity away really has to do with the civil liability of the government unit. … None of that is to say the a person should not be personally responsible for a decision that is outside of their training and direction and procedures. … There is already a way to sue a government (or government individual) that is not compliant.”
Support and opposition to change is a national issue
A national survey by the Cato Institute found that 63 percent of Americans support eliminating governmental immunity.
Nationwide criticism of qualified immunity catapulted into the public eye after the murder of George Floyd who was killed by a Minneapolis policeman on May 25, 2020. Since Floyd’s death, Colorado, Connecticut, New York and New Mexico either ended or limited the protective scope of qualified immunity.
“Although qualified immunity has prevented victims of police misconduct from holding officers accountable for decades, until recently it had been a relatively obscure doctrine that was not on the radar of many non-lawyers,” said Michael Steinberg in a faculty Q&A. Steinberg, who advocates for ending qualified immunity, is a professor and director of the Civil Rights Litigation Initiative at the University of Michigan Law School.
But strong resistance to any change in the law remains.
The U.S. Supreme Court recently upheld such protection by overturning lower court decisions to remove qualified immunity in cases in California and Oklahoma.
Bipartisan police reform negotiations in the U.S. Congress ended without resolution in September, even after Democrats removed controversial changes suggested for qualified immunity.
The Michigan bills are co-sponsored by Detroit representatives and House Democrats across the state. If they are signed into law, when police officers or government officials are sued and found liable, they will have to personally write the check.
Law enforcement officials say that’s a deal breaker.
“When a municipality gets faced with a lawsuit, more times than not they look at it as a business decision on whether or not to settle,” Livingston County Sheriff Michael Murphy said.
And the insurance company or municipality writes the check, he said. “I’m a cop. I’m just essentially a blue collar worker. I don’t have a million dollar check to write.”
Qualified immunity does not mean that law officers have complete immunity for their actions, Murphy said. It has to be granted by a judge.
“This is not something that the cop or the municipality can just hold up and say, ‘Oh, hey, I work for the government or I’m a cop, I get qualified immunity.’”
Removing qualified immunity protection is currently a case-by-case decision, Steinberg said.
Under the qualified immunity defense, people injured by police or family members of those killed must prove the violation of their rights with examples from “nearly-identical” court cases, the American Civil Liberties of Michigan said in a prepared statement.
Still, police say removing any part of the qualified immunity statute is a bad idea.
“Ending qualified immunity puts police officers always at risk of having their actions judged, not by what they knew, and not judged on what the rules were today but judged upon hindsight being 20-20,” said Bob Stevenson of the Michigan Association of Chiefs of Police.
Murphy and Kenneth Grabowski, the legislative director of the Police Officers Association of Michigan, say they believe the current law is working fine.
“Most of this stuff is just to placate people complaining,” said Grabowski. “But it works.”
Murphy said that if people understood how difficult it is to get qualified immunity, this discussion wouldn’t even be taking place.
“I really, truly believe in my heart, that most men and women put on that uniform every day to do the right thing,” he said.
WKTV’s K.D. Norris contributed to this story.
