Qualified Immunity Should Be Abolished so that Police Can Be Held Accountable

My name is Patrick Elliott and I’m a civil rights attorney here in Tampa, Florida. Specifically, I do civil rights in the employment context and I represent clients throughout the State of Florida.

Essentially, my work consists of the following: somebody gets fired, they call me for a free consultation, and in most cases, if I think they have a case I take it on contingency fee. This means that people who could not normally afford an attorney are able to have legal representation.

Recently I read an article in the New York Times entitled, “Abolishing Qualified Immunity Is Unlikely to Alter Police Behavior,” written by Daniel Epps, an associate professor of law at Washington University in St. Louis.

The article is expertly written and while I strongly recommend reading it, I think there are some practical considerations that Mr. Epps didn’t apply in his reasoning as to why abolishing qualified immunity would not significantly alter or correct police misconduct. Mr. Epps correctly notes that:

Qualified immunity shields government officials from personal liability in federal lawsuits unless they violate “clearly established” federal law. That means that even if a police officer violates someone’s constitutional rights, the victim can’t obtain damages from the officer unless he or she can show that the officer violated a right explicitly recognized by a prior court ruling.

In theory, this requirement protects government defendants from unexpected liability when law changes. In practice, courts apply the doctrine aggressively to shield officers from lawsuits unless plaintiffs can point to other cases declaring essentially identical conduct unconstitutional — a difficult hurdle, even when police conduct appears clearly wrong.

This is where Mr. Epps and I differ. Many of the same laws that govern employment discrimination are also the same laws you would use in cases of police brutality. However, because of qualified immunity, many attorneys simply can’t afford to take the case on contingency because of the high likelihood of not achieving a favorable outcome for your clients because of the outdated qualified immunity doctrine.

The practical result is that you have a lot of lawyers like me who know and deal with the civil rights laws on a daily basis, yet who’s knowledge and expertise go to waste because thy simply can’t afford to take these types of cases on contingency fee.

This also means that, before a person can even attempt to sue for things like police brutality under Section 1983, they would first have to pay approximately $5k - $15k to an attorney as a retainer. This is simply not a reality for many of the people who are being brutalized by the police and subjected to frequent constitutional violations.

Revising a few laws to hold bad cops, and their districts, accountable, at least monetarily, when they violate a person’s constitutional rights would allow lawyers to take these kinds of cases on contingency fee. Remember tobacco litigation? It didn’t happen because the government held those companies responsible, it’s because the companies own actions exposed themselves to civil liability to which there was a remedy.

That means that you don’t pay unless you win, and then it’s a percentage. Imagine seeing commercials saying something like:

Did the police violate your constitutional rights? You may be entitled to compensation. Call 1-800-lawyer for a free case consultation. Pay only if you recover monetary compensation.

When I was in law school, my constitutional law professor said one thing that has continually stayed with me: racists never quit. They never will. However, if you give an incentive to lawyers to take these cases on contingency, change will happen. The only way to shake the naughty stick at corporations and governmental agencies is through their pocketbooks.

If you live in Florida and suffered discrimination at the workplace or feel that you were wrongfully terminated, contact Florida Employment Law Attorney Patrick K. Elliott at 1(800) 563-1409 or visit https://www.employmentandconsumerlaw.com.

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