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It is difficult to sue police officers and other state officials for civil damages in federal court when they injure or kill someone in the course of their job due to the doctrine of qualified immunity. However, this doctrine was not originally intended to protect bad cops.

“The law that this is rooted in was intended to protect Americans from harm caused by state officials,” former state Attorney General Rob McKenna explained. “This dates back to the adoption of the 13th, 14th, and 15th Amendments after the Civil War.”

The 14th Amendment says no state shall make or enforce any law that abridges the privileges or immunity of citizens of the United States, nor shall any state deprive a person of life, liberty, or property without due process.

“They passed those amendments to allow victims whose constitutional rights were violated to sue state officials in federal court,” McKenna said. “After they decided to do that, there were a lot of civil lawsuits brought against public officials, including police officers, so the Supreme Court started making it harder and harder to bring these cases.”

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In the view of the courts, it had gone too far once they started allowing suits to be brought against state officials under the Bill of Rights.

“The court became concerned that there were too many of these lawsuits and that public officials who would exercise or discharge their duties in good faith were too often being sued in their personal capacity,” McKenna said. “For example, the courts have said police officers shouldn’t have to ‘choose between being charged with dereliction of duty if he does not make an arrest when he has probable cause, and being held liable for damages if he does.'”

Now, McKenna added, we’re at a point where people on both the left and the right think this policy needs to be changed or reformed.

In a turned down by the Supreme Court this week, Alexander Baxter was bitten by a police dog in 2014 when he was caught by police carrying out a burglary.

“Baxter says he had already surrendered when the dog attacked. He sued for civil damages, and the sixth Circuit Court of Appeals tossed out his case,” McKenna explained.

, the court held that while it was established that a police dog could not go after a suspect who was lying down, there was no previous case where someone had been sitting down with their hands up, as Baxter did.

“So they tossed the case because there had been no finding that a police dog biting you when you’re sitting down with your hands up violated rights,” McKenna said. “That’s just going way too far. That’s a stupid decision, or a stupid rule that the court applied. And this is one of the reasons that Justice Thomas dissented and said, we should grant review in this case.”

The standards for criminal cases are much higher, however, and qualified immunity has been an issue discussed during the Black Lives Matter protests in terms of the difficulty of any prosecution against a police officer.

“You have to prove intent,” McKenna said about criminal charges. “I think that the doctrine of qualified immunity has kind of got swept up in that, but people are conflating the qualified immunity doctrine, which only applies in civil cases, with the high standard and burden of proof that applies when you bring criminal charges, particularly charges for murder, which require proof of intent.”

McKenna thinks that any reform needs to include some sort of good faith exception to protect public officials, including police officers, but also firefighters, hospital workers, and others.

“There has to continue to be some good faith exception,” he said. “But this idea that you can’t bring an action and succeed unless you can prove that that exact decision has already been adjudicated as a basis for reliability, that can’t continue to be the case.”

“This is something Congress should take up and decide what the right standard is that balances our need to protect our public officials so they can do their job in good faith, and … people’s rights to seek redress when their constitutional rights are violated and they’re harmed by bad faith conduct.”

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