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Currently there is concern about police brutality and overreach. One suggestion I've heard often is ending qualified immunity, and there are many videos with convincing arguments for removing the legal doctrine or scaling it down. I'm having trouble finding anyone arguing for qualified immunity.

What does the other side have to say? What are the arguments for police having qualified immunity?

Edit: I am talking about the US, although the general concept can apply to other countries.

People have asked for my research, here are some of the things that popped up when I was searching:

  1. https://scholarship.law.nd.edu/ndlr/vol93/iss5/2/ Titled The Case Against Qualified Immunity
  2. Cato Institute (Against) sites: https://www.cato.org/blog/why-qualified-immunity
  3. Reason.Tv (Arguments Against) https://reason.com/2018/06/14/the-case-against-qualified-immunity-part-2/
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    I assume you’re asking about in the US? – divibisan Jul 8 at 23:26
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SCOTUS established "qualified immunity" in Pierson v Ray.

a policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does

Courts take hours or weeks to decide what is legal; a policeman has seconds or minutes and cannot be reasonable expected to always correctly determine the answer.

The argument is that it's better to compromise on civil rights in order to have a more effective police force. (Note that qualified immunity applies to civil lawsuits, not criminal ones.)

The arguments have remained essentially the same in the 50 years since Peirso v Ray, though the courts have narrowed the applicability of qualified immunity, e.g. not covering infringement of "clearly established" laws and rights.

For comparison, the UK police does not have qualified immuity, but it is also extremely difficult to sue for negligance. One way or another, there must be some guard against frivolous lawsuits; the argument for qualified immunity is that it's better to bias police towards action.

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TL; DNR: It’s all about costs and benefits.

The arguments on both sides of the QI debate are largely practical. Both sides agree that using QI lowers the cost of police protection by insulating the police from groundless or harassing law suits. Both sides agree that using QI raises the cost of police protection by protecting the police from well-founded law suits. Both sides also agree that the indirect effects of QI, especially through its effects on incentives, may be the most important.

The arguments are about the size of these various costs and benefits. As SystemTheory shows, many (most?) of those who argue for keeping QI focus on the bad incentives of ditching QI. Getting rid of QI raises the costs to police, both material and non-material, of doing their job. As the costs to police of doing their jobs go up, police naturally won’t work as hard. And because they don’t work as hard, the cost of criminality will go down, and crime will go up.

Unfortunately, while we have plenty of anecdotes (“Record for murders in Chicago”) and some rough correlations ("it'll be the Ferguson effect all over again") we don’t have a good handle on how much QI affects police effort, or how much police effort affects crime. Thus, although the argument over QI depends on matters of fact, our ignorance means we end up arguing over what we feel/know is, or must be, true.

PS The arguments against QI focus on the benefits of QI. Opponents claim that, as a matter of fact, it is almost impossible to overcome QI, so that police are free to abuse their power, reducing the net benefits of QI. Again, there are plenty of anecdotes but little systematic evidence.

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A brief statement by The International Association of Chiefs of Police posted under this link

https://www.theiacp.org/sites/default/files/IACP%20Statement%20on%20Qualified%20Immunity.pdf

makes these arguments in favor of qualified immunity

Qualified immunity provides police officers with protection from civil lawsuits so long as their conduct does not violate clearly established law or constitutional rights of which a reasonable officer would have known. Further, qualified immunity does not prevent individuals from recovering damages from police officers who knowingly violate an individual's constitutional rights. Qualified immunity is an essential part of policing and American jurisprudence. It allows police officers to respond to incidents without pause, make split-second decisions, and rely on the current state of the law in making those decisions. This protection is essential because it ensures officers that good faith actions, based on their understanding of the law at the time of the action, will not later be found to be unconstitutional. The loss of this protection would have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation. Calls to limit, reduce, or eliminate qualified immunity do not represent a constructive path forward. In fact, these efforts would most certainly have a far-reaching, deleterious effect on the policing profession’s ability to serve and protect communities.

A seven page transcript of a podcast discussing qualified immunity under this link

https://www.fletc.gov/sites/default/files/PartIXQualifiedImmunity.pdf

provides the following rationale for the doctrine of qualified immunity:

The rationale behind qualified immunity for police officers is two-fold. First, it permits officers to perform their duties without fear of constantly defending themselves against insubstantial claims for damages. Second, it allows the public to recover damages when a reasonable officer would know that the officer unreasonably violated a plaintiff’s constitutional or federal legal rights. Qualified immunity is designed to protect all but the plainly incompetent or those who knowingly violate the law.

This is a 47 page presentation and outline from 2004 describing how lawyers can make efforts to defend government officials using the doctrine of qualified immunity. There is an outline discussion of the rationale for the law, substantive law, and procedural law:

https://www.cacities.org/UploadedFiles/LeagueInternet/ca/ca94a7d3-2019-4b75-9ce9-5ce2f3e3ccfa.pdf

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Most answers here provide legitimate arguments, but surely ulterior motives exist. Consider that dreadful subset of sadistic, racist, corrupt, criminal, and all around "bad apple" police officers, Qualified Immunity helps to let them consciously do wrong as they like.

QI also helps enable delusional officers who behave exactly as the "bad apples" do, but who wrongly believe themselves morally imaculate.

So backstage these wayward officers would probably reason thusly: without QI, we'll be sued more, our incomes would be lower, we'll have less fun, we'll have to water down our hazing, and receive less respect! We must unite to support QI, by insisting the world is far more dangerous than it is and conflating dangerous but rare corner case felonies with harmless hourly misdemeanors.

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  • This answer would benefit from instances of the above arguments by actual BAPOs, or as overheard by their peers, taken from the literature of confessional stories by cynical ex-cops. – agc Jul 17 at 16:47
  • QI can never protect you from going to jail. It's a protection against private lawsuits, and private lawsuits can never put people in jail. – Michael Mortensen Sep 29 at 10:57
  • @MichaelMortensen, Thanks. See revised answer. – agc Sep 29 at 18:22

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