Chicago is consumed in shock and grief after the police shooting of 13-year-old Adam Toledo. It is an unfathomable tragedy that demands answers and accountability from police.  We expect that accountability, but will we get it?

“Consider another example. A family is playing in their own front yard in rural southern Georgia on a warm summer day, when a group of police officers arrive suddenly in pursuit of a suspect. After apprehending the suspect, who is unarmed, the police inexplicably order the family — at gunpoint — to lie face down on the ground. They comply immediately, scared and shaking. For no apparent reason, a Coffee County Sheriff’s deputy fires two shots at the family dog, who posed no threat. The deputy misses the dog, but his bullets strike a 10-year-old child in the back of his knee.

 

You might think this deputy would face consequences for this sort of recklessness. You would be wrong. Thanks to the Supreme Court-invented doctrine known as qualified immunity, the case was tossed after Amy Corbitt's appeal was denied in June 2020 after six years of litigation. The court never even considered whether the deputy’s actions violated the Constitution, and the family got nothing.”

Qualified immunity is the reason police can violate a person’s constitutional rights and face absolutely no consequences in court. Police leaders are quick to acknowledge “a few bad apples” in their ranks, but fight tooth and nail all attempts to hold them accountable. No single law, policy, doctrine, or practice has done more to shield “bad apples” in law enforcement from accountability and deny victims of egregious civil rights abuses justice than qualified immunity. It is time to end this destructive protection for police who commit heinous constitutional violations.

A legislative proposal, House Bill 1727, The Bad Apples in Law Enforcement Accountability Act, addresses this problem. The measure, sponsored by State Representative Curtis Tarver, was approved by the Restorative Justice Committee and now is on the floor awaiting a vote. It provides a vehicle for enforcing rights created by the Illinois Constitution when police violate them. Specifically, the bill allows a person to bring a lawsuit in Illinois state court against a police officer who violates that person’s rights under the Illinois Constitution, including the provision that prohibits police from using excessive force. This would allow courts and juries to assess allegations of constitutional violations by police on a case-by-case basis, rather than being blocked by qualified immunity, lead to more just and equitable outcomes for people harmed by law enforcement, and better enable police departments to identify and discipline bad cops. Colorado already passed such a measure in June 2020, and an overwhelming majority of Illinoisans (and Americans) agree that civilians should be able to sue police officers to hold them accountable for excessive force and other constitutional violations — something that cannot happen with qualified immunity in place.

Arguments in favor of keeping qualified immunity are cloaked in myth rather than fact.  No, ending qualified immunity would not penalize officers for “mistakes” and allow police to be “sued for anything,” nor would it change whether and how police are indemnified. The bill also does nothing to alter the tremendous – and understandable — deference to which split-second police decision-making is entitled under the Constitution, and it does not touch the numerous, potent procedural and substantive defenses available to police for defeating civil rights claims. Good cops have nothing to worry about.  Bad cops do.

The Bad Apples Act creates meaningful accountability and removes often insurmountable and unfair barriers to justice for people whose constitutional rights have been violated by bad cops. It would begin to change the belief held by many that police officers can act with impunity while on duty in their neighborhood, and help restore community trust in the “good apples” who comprise the majority of police officers. As tragic headlines make clear all too frequently, real police accountability is needed now more than ever. Passing this legislation is the next, and necessary step, to achieving it in Illinois.

Peter H. Hanna serves as legal adviser to the ACLU of Illinois. He is also an adjunct professor of law at Chicago-Kent College of Law.