Qualified immunity protects government officials like teachers and police officers from certain lawsuits if they are accused of violating someone’s rights while acting in their official capacity. Under current law, such lawsuits are only allowed if the constitution or case law have specifically stated the official’s actions are prohibited — such as racial profiling — the amendment would allow lawsuits in situations where it’s less clear whether the official may have violated someone’s rights.
Qualified immunity results in various civil lawsuits being thrown out if they hinge upon a statutory or constitutional right that is not “clearly established.”
The amendment would lift this protection, though it would specify that financial damages from such transgressions would be borne by the government agency, not the government employee.
Kyle Pierce, executive director of OCEQI, told the Dayton Daily News that the amendment would remove Ohio’s recognition of qualified immunity, prosecutorial immunity, sovereign immunity, and “any other immunity that the government enjoys at the people’s expense.”
Pierce explained that, as a result of the amendment, Ohioans would be able to sue prosecutors for withholding evidence that leads to innocent suspects receiving jail time for a crime they did not commit; or when university administrators infringe on campus free speech, for example.
Law enforcement opposition
While the amendment does not uniquely target law enforcement, police advocates like former Montgomery County sheriff state Rep. Phil Plummer, R-Butler Twp., say they’re ready to fight it “tooth and nail.”
“It is an unneeded attempt to spur frivolous lawsuits and it will paralyze government at all levels from townships to cities to counties to the state of Ohio,” Ohio Fraternal Order of Police President Jay McDonald, who oversees the state’s top police union, told the Dayton Daily News.
Plummer and McDonald argued that police are consistently held accountable in Ohio; either through criminal convictions when police actually break the law or through disciplinary measures when there’s been misconduct.
“You know, I’ve had plenty of opportunities to fire bad officers,” Plummer said.
Plummer believes ending qualified immunity would force many of Ohio’s police to reconsider working in the state.
“It’d be a major problem for law enforcement,” Plummer said. “You’d have a lot of officers just resign over that fact if they didn’t have immunity. I mean, who wants to go into this job and lose your house, your car, over a situation?”
Richard Biehl, former Dayton police chief, told this outlet that he also opposes any effort to get rid of qualified immunity.
He questioned how beneficial it would be toward overall accountability given that constitutional standards around policing have already been clearly established, including on areas of unlawful arrest, excessive force, illegal searches. He reasoned that ending qualified immunity likely wouldn’t substantially broaden Ohioans’ scope for actual justice.
Instead, he believes ending qualified immunity would result in an increase in dubious claims and crisis of morale among law enforcement officials.
“We already have a staffing crisis, all departments are understaffed — Dayton clearly is, there’s no question,” Biehl told this news outlet. “Now we’re going to increase the risk for police officers who, arguably acting in good faith, (took) action that some later point is determined to be a violation of constitutional rights that was not clearly established (and) now they’re going to be penalized for that.”
Credit: Contributed
Credit: Contributed
Backers, NAACP
The campaign pushed back on Plummer’s assertion that well-meaning police officers would be prone to losing their possessions in civil court.
“We recognize that there are honest mistakes, absolutely. Sometimes, maybe the training isn’t up to par, maybe the protocols aren’t being enforced,” Pierce told this outlet. “That’s why, under this amendment, no government employee (and) no government agent will ever be held financially responsible in any case brought under this amendment. The responsibility for that falls on the government employer.”
The Ohio Federation of Teachers, which represents more than 20,000 public school teachers who are also protected by qualified immunity, declined to comment about the proposed amendment. The Ohio Education Association did not respond to a request for comment.
Listed as a member of OCEQI’s “coalition,” the Ohio Conference NAACP is still contemplating whether it should make a firm endorsement of the amendment.
“We could not come to a decision to actually endorse it ... We did say we were supportive of the concept,” Tom Roberts, a former Dayton-area state lawmaker and the current president of the state’s NAACP chapter, told the Dayton Daily News.
Roberts particularly likes the idea of ending qualified immunity for police.
Credit: Doral Chenoweth
Credit: Doral Chenoweth
“Part of what we want to make sure is that there’s always an opportunity to investigate wrongdoing,” Roberts said. He argued an easier, more consistent avenue for civil lawsuits could become a valuable tool for community members to use to “actually remove bad actors from law enforcement where they exist.”
Roberts said the Ohio NAACP will once again consider an endorsement during its December meeting.
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Avery Kreemer can be reached at 614-981-1422, on X, via email, or you can drop him a comment/tip with the survey below.
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