An Argument for Locally Enacted Police Model Rules of Professional Conduct to Fill the Gap between the Supreme Court’s Qualified Immunity Jurisprudence and Reasonable Police Behavior.

Abstract

Calls for police reform are growing louder, as are calls for retention of the status quo. A significant segment of our population believes that the criminal justice system is broken. Another segment of our population believes police are warfighters, and examinations of police conduct by those without police experience would lead to many problems. Police unions argue reform of police conduct laws will result in everything from hiring and retention issues to the inability to perform the job of keeping society safe. This paper will outline why I believe Judicial and Executive regulation of police has failed.

The paper will detail the judiciary's abandonment of police control via Qualified Immunity and the executive branch's loss of control to police unions. It will then propose one solution that could help replace or strengthen these two broken structures of police accountability: A professional advisory body promulgating a Police Model Rules of Professional Conduct [PMRPC].

Effective law enforcement reform must have two things: (1) Enough political consensus to pressure changes and (2) a government body with authority to put the proposed changes into action. There are many places where society can exert control over law enforcement actions and determine the acceptability of police conduct: The Executive, Legislative and Judicial branches of Federal, State, and Municipal government. This paper will discuss how the judiciary has abdicated its civil review of police activity through its qualified immunity doctrine. I will detail how the judiciary arrived here based on the separation of powers. Examine the court's interpretations of the language of Qualified Immunity. And then break down the qualified immunity test word for word, detailing how judicial hesitancy to examine any factor other than "clearly established law" leaves easily definable swaths of unconstitutional and unethical law enforcement action unreviewable by the judiciary. It will then investigate the "clearly established law" test and make a novel argument that Qualified Immunity has developed multiple procedural problems. At points along the way, the paper will revisit the idea of a PMRPC to reinstate accountability into the profession of policing.

Luckily, state and local governments can exert control over law enforcement conduct. The paper will examine one of the primary opponents of police reform at the state and municipal level, police unions. It will then detail how Police unions make local executive branch control over police conduct ineffectual. , The paper will examine a few untruths spread in the media by police unions surrounding qualified immunity.

I will address a significant fear surrounding waivers of qualified immunity at the local level--budgetary issues. I will then suggest a solution that could allow local municipal bodies to circumvent police union obstruction and enact their communities' shared sense of officer accountability. Local governments could enact police conduct laws drafted for them by professional drafters, aa PMRPC. Local governments could tie the PMRPC prohibited conduct to waivers of qualified immunity and limited damages waivers tied to professional liability insurance caps. I believe this system would work well for the exact reason it's needed. Because anyone seeking to circumvent the system will automatically return to the plaintiff loses world of qualified immunity.

This paper will explain how a PMRPC offers academics a way to help police reformers and local legislators, many of whom do not have advanced degrees and cannot predict the games that lawyers will play with their words. Academics and affected communities could meet to draft a model set of police conduct rules. To encourage municipalities to waive qualified immunity, a compromise could be offered. Legislatures could make PMRPC qualified immunity waivers subject to limited damage caps tied to professional liability insurance caps.

Keywords: Qualified Immunity, Police Abuse, Police Misconduct, Police Model Rules of Professional Conduct