On Friday, Colorado passed what has been called “an enormous police reform bill”. It was signed into law by a masked Governor Polis before a very restricted audience. As he did so he made the de rigueur though totally irrelevant comments about ending racial profiling and disparate treatment, but he can be forgiven for that.
Qualified immunity has been in the news much of late; if you want to learn something about its history, check out this short video. Qualified immunity is an offshoot of vicarious liability, which is in turn an offshoot of strict liability. The case law was developed in England from legislation enacted during the industrial revolution. If you work in a factory or any business that uses potentially dangerous machinery, you will notice there are safety features built into the machines, and sundry health and safety regulations. In the early days, these safety precautions were often non-existent, which could result in workers suffering horrific injuries or death, so factory owners were deemed to be liable, period.
Vicarious liability extended this so that a factory or business owner was liable for the torts of his servants. This includes hospitals. Claims for medical negligence can run into the millions or even tens of millions, as can be seen by this report from the UK. Any surgeon who could afford to pay out such compensation would probably not be working as a surgeon.
When police officers overstep the mark, their employers are held vicariously liable. The notorious Rodney King case saw the victim awarded $3.8 million damages in addition to legal fees. There, as ever, it was the state – the City of Los Angeles – that picked up the tab. King’s assailants were also tried for the outrageous assault, and were shamefully acquitted. The idea they could have been given qualified immunity in that case was too outrageous to entertain, but there have been many others in which quite vicious assaults on citizens or other violations of their rights have been rubber stamped as unfortunate but tough luck, sucker.
Making police criminally liable in a personal capacity – and therefore liable in tort as well – is not being universally welcomed. It may indeed lead to them “pulling back” at times, but that is a price most citizens seem willing to pay. But simply stripping them of qualified immunity is not enough, rather the vicarious liability for their torts should be shifted from their employers onto the police unions and pension funds. Only when the police are hit in their wallets will their behaviour improve, and in future they won’t be so cavalier about arresting people and at times destroying their property.
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