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New York City “Ends Qualified Immunity” — A Little Bit

The media is celebrating NYC as the first major U.S. city to “end qualified immunity” for cops who commit criminal acts — but the legislation that passed is far from a full ban on the statute that protects cops from legal retribution.

Zed Simon

March 30, 2021
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Image: www.bet.com

On Thursday, March 25, the New York City Council passed a legislative package of reforms and resolutions as part of an effort that looks like appeasing voters by appearing to hold the police accountable. Media outlets were quick to herald NYC as the first major U.S. city to end qualified immunity for the cops — and that is, in fact, what I intended to write until just a few minutes of research showed this to be an inaccurate oversimplification of the legislation. 

Qualified immunity is a legal statute that protects police officers and elected officials from legal retribution against acts they commit in the course of duty that might, in other circumstances, be illegal. Qualified immunity came under new scrutiny last summer as an enraged movement of millions took to the streets in the name of George Floyd, Breonna Taylor, Tony McDade, and countless other Black and Brown people murdered by police every year. After months of unemployment and lockdown, the people were ready to fight and, just as importantly, educate themselves on existing laws. Calls to abolish the police were backed up with concrete demands such as defunding police budgets and ending qualified immunity, which would be an important reform to begin holding police accountable for the violence they perpetrate on communities of color and other oppressed folks.

That is not what the City Council has done.

The legislation just passed came just a week after the New York Police Department (NYPD) reportedly surpassed its allotted overtime budget for fiscal year 2021, more than three months before the new budget even takes effect on July 1. The 2020 Black Lives Matter uprisings and a heavily scrutinized police budget process led to numerous delays and a past-midnight vote watched on a livestream by hundreds occupying the grounds outside City Hall. Mayor Bill de Blasio attempted to placate protesters with a budget that limited police overtime, assuring New Yorkers that those limits would mean at least part of their demands to defund the police were enacted. 

As always, however, the city continues to pay endless amounts of taxpayer money for surveillance and the protection of property. The demand was for cuts of $1 billion, but only approximately $415 million was cut from the police budget — and  $334 million of that number came from this “cutting police overtime” de Blasio promised. Police overtime in FY2021 will cost taxpayers an estimated $405 million, a 60 percent increase over de Blasio’s promise. Clearly, we cannot trust that laws and budgets — which working-class people must abide by every day — are similarly followed by the city.

The legislation touted as the “end of qualified immunity” for the NYPD is, in fact, just a limited bill focused on the U.S. Constitution’s Fourth Amendment regarding illegal search and seizure. The City Council’s own summary of the bill states:

The bill would establish a local right of security against unreasonable search and seizure and against excessive force regardless of whether such force is used in connection with a search or seizure. If an NYPD employee, or a person appointed by the Police Commissioner as a special patrolman, allegedly deprives a person of this right, the person would be able to bring a civil action against the employee or appointee, as well as against the employee or appointee’s employer, within three years after deprivation of the right. The employee or appointee (or their employer) would not be allowed qualified immunity, or any substantially equivalent immunity, as a defense. The Law Department would be required to post details of these kinds of civil actions online.

Plenty of people are victims of police violence that does not fall into this category, leaving gaping holes for legal arguments on the cops’ behalf. And should any plaintiff win a civil suit against the cops, the city would still pay any damages (not the cops themselves or their “unions”) — meaning taxpayers will continue to foot the bill for wrongdoing by the police.

The push to pass this package now came in the form of an executive order from New York Governor Andrew Cuomo requiring that all localities develop a plan that includes “evidence-based policing strategies.” The plan had to be enacted by April 1 or a city risked Albany withholding state and federal funds.The City Council legislation includes several resolutions in line with the governor’s order, but outside the actual jurisdiction of city government. 

Critics of the package point out it also includes more funding for police “reform” strategies that are proven failures, and that the plan will expand the NYPD’s presence in communities. While organizers have called for decreasing the police force and increasing accountability, the legislation seems to do the opposite in the former case and very little in the latter. Just last week, the NYPD’s response to anti-Asian hate crimes was to send plainclothes police officers into Chinatown, despite last year’s promise to disband these “anti-crime” units, whose officers have been involved in a disproportionate number of civilian complaints and shootings.

You might be interested in: Violence Against Asian Americans Is Fuelled by U.S. Imperialism

City councilors have been lauded for passing this legislation, which is being painted as a sweeping victory for progressives. Democrats will surely use it as an argument to vote for their candidates in November’s elections. But these small reforms didn’t happen because of electoral politics. Neither candidates nor voters were thinking or talking about ending qualified immunity when they went to the polls in 2018. Countless protesters marching in the streets for months in 2020 is what brought the potential destruction of qualified immunity to the table. It is protesters who have been fighting to hold the racist police force accountable. It is protesters who won the repeal of law 50-A, which has just this month made police misconduct records publicly available (nine months after the law was repealed, and not without additional fights). 

Celebrations of police reforms by the very politicians that fund the cops that oppress our communities cannot be taken at face value. We will not vote our way to abolishing the police.

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