“In other words, police officers are not above the law.”
It is true that police officers are not literally immune from liability for their misconduct (unlike prosecutors, who actually do receive absolute immunity for violating people’s rights). But police officers are held to a vastly lower standard of accountability than the citizens they police. For regular people, it’s a well‐known legal maxim that “ignorance of the law is no excuse.” Even in cases with serious criminal penalties, courts routinely permit the prosecution and conviction of defendants who had no idea they were breaking the law. If anything, you would expect law enforcement—public officials specifically charged with knowing and enforcing the law—to be held to a higher standard of care than ordinary citizens. But in fact, they’re held to a far lower standard. Ignorance of the law is no excuse—unless you wear a badge.
“Cops who commit crimes can be punished . . . . Cops who make lesser mistakes can be disciplined, suspended, or fired, and they often are. That’s the system that we have now. It works pretty well.”
If this assertion doesn’t cause you to burst out laughing, then you haven’t been paying attention to our criminal justice system for the last several decades. Suffice to say, no, our system is not working pretty well. It is extraordinarily difficult to convince prosecutors to bring charges against police officers, much less to obtain convictions (see here for a list of especially notable non‐convictions). And internal discipline measures are feeble, due in large part to the power of police unions. The inadequacy of both criminal prosecution and internal discipline as meaningful accountability measures is exactly why we need a robust civil remedy — and therefore exactly why qualified immunity is such a serious problem (we’ve argued this point in much more detail in our cross‐ideological amicus briefs before the Supreme Court).