Presidential candidate Julián Castro called for the end of qualified immunity at Wednesday night’s Democratic presidential debate.
“We need to ensure we have a national use-of-force standard and that we end qualified immunity for police officers so that we can hold them accountable for using excessive force,” Castro said, as he invoked the names of Tamir Rice, Michael Brown, and Eric Garner.
Castro echoed the growing number of critics of qualified immunity who say that the doctrine protects law enforcement at the expense of victims of police violence.
But at a time when the doctrine is drawing fire from progressive and conservative circles, the New Jersey General Assembly unanimously passed a bill in June to extend immunity to police officers at private colleges and universities, and to the institutions themselves. A similar version of the bill has been introduced in the Senate but has not yet been heard in committee.
Rather than extend immunity, New Jersey criminal justice reform advocates say, it’s time to abolish it altogether and instead focus on holding officers accountable. Private colleges and universities should work to protect the civil rights of those who interact with campus police, said Micah Herskind, a student activist who graduated from Princeton University in June. Princeton, along with Monmouth University and Stevens Institute of Technology, publicly support the bill.
“You only need immunity for police violence if you plan on allowing for police violence,” said Herskind. “They’re trying to protect themselves from the fallout of police violence rather than trying to make sure police violence never happens in the first place.”
Under the federal Civil Rights Act of 1871, known as Section 1983, government officials, such as municipal police officers, can be sued for financial damages if they violate a person’s civil rights while acting in their official capacity. However, the U.S. Supreme Court established a doctrine known as qualified immunity that critics say has gutted the statute over recent years. For a civil rights claim to be successful, qualified immunity requires that the injured party show that a clearly established right was violated. This places the onus on victims to find a previous case with a nearly identical fact pattern, according to critics of the doctrine.
Qualified immunity allows officers to escape accountability, said Diane Goldstein, a retired police lieutenant and a board member of the Law Enforcement Action Partnership, an organization that advocates for criminal justice reforms. New Jersey’s bill treads down the same path, she said.
“This bill will further protect law enforcement from being accountable for incompetence, for gross negligence,” said Goldstein. “If we can’t hold the criminal justice system accountable, where can citizens go?”
The bill’s supporters say it would simply grant officers at private educational institutions the same protections as municipal and state officers. “These brave men and women put their lives on the line every time they show up to work, and they deserve the same treatment as other police officers who do the same,” Assemblymember Roy Freiman, the bill’s primary sponsor, told The Appeal in an emailed statement.
Alexander Shalom, senior supervising attorney at the ACLU of New Jersey, however, says immunity for any officers is a problem. “The assumption of the bill is that qualified immunity is good and we’ve granted it to some, therefore we should grant it to all,” he said. “That’s an assumption that needs to be challenged.” Shalom said he can understand the desire for parity among officers, but the larger question is: “Do you level up or level down?”
Already, Shalom said, it is difficult for victims of police violence—who are disproportionately Black—to hold officers accountable. A Black person in New Jersey was more than three times more likely to be the victim of police force than a white person, according to The Force Report, an investigation by NJ Advance Media for NJ.com that was published in November.
The Force Report is a database of use-of-force incidents by New Jersey municipal and state officers from 2012 to 2016. Campus officers at public or private colleges and universities were not included in the study.
Not only did the report reveal an epidemic of police violence directed at Black residents, but it exposed a system that failed to systematically track use-of-force incidents. “New Jersey’s system for tracking police force is broken, with no statewide collection or analysis of data, little oversight by state officials and no standard practices among local departments,” reads the report.
In the wake of the report’s release, the New Jersey attorney general announced reforms and promised to host “listening sessions.” Civil rights leaders also held a series of forums to hear from victims of police violence. Timothy Adkins-Jones, pastor of Bethany Baptist Church in Newark, hosted the first forum in March.
“This is going in the exact opposite direction that we have been calling for,” Adkins-Jones, speaking with The Appeal, said of the bill before the New Jersey legislature. “We’ve been calling for greater accountability, greater points of oversight.”
Inside Adkins-Jones’s church in the spring, NJ.com reported, civil rights leaders listened as parents spoke of losing their sons to police violence and a mother recalled being brutalized in front of her children. “There’s such deep hurt and pain and experiences that people have had with the police,” Adkins-Jones told The Appeal. “Any movement toward taking power away from people is going to be throwing salt in a wound that is already quite deep.”
The state’s approximately 70 private campus officers match their public sector peers in terms of training, powers to arrest, accountability to local prosecutors’ offices, and obligations to abide by attorney general directives. Officers at Stevens Institute of Technology “are armed with handguns,” Thania Benios, director of public relations at Stevens, wrote in an email to The Appeal. Monmouth University officers are armed as well, according to John Christopher, vice president and general counsel at Monmouth. Princeton campus officers, however, “are unarmed on a daily basis,” but “have access to a rifle in two limited situations, an active shooter incident or when there is someone brandishing a firearm on campus,” according to the university’s Department of Public Safety website.
According to Stevens’s internal affairs report, there were four complaints against campus police last year: three for “demeanor” and one for “other rule violation.” All use-of-force reports are sent to the county prosecutor and the New Jersey attorney general, according to Benios. At Princeton, police generated use-of-force reports last year for incidents involving two people, according to documents provided by the university.
Princeton student activist Nathan Poland, a 21-year-old rising senior, told The Appeal that the university’s support of the bill shows misplaced priorities. “To focus on mitigating consequences for the officers rather than trying to mitigate civil rights violations in the first place was really concerning to me,” he said.
In June, Paul Ominsky, assistant vice president for public safety at Princeton, testified to the General Assembly’s Law and Public Safety Committee. “Campus police officers serve a public purpose and should be eligible for the same immunity protections as the local officers with whom they work side-by-side,” he said.
While the officers may serve a public purpose, they are employed by private entities with private interests to protect that are not accountable to the public, said Kevin Costello, president of the New Jersey Association for Justice, a group of more than 2,000 attorneys and other legal workers. “They’re giving the institutions themselves a complete pass,” he said.
Public agencies and their officers are subject to accountability measures not required of private institutions, according to Costello. For instance, he said, residents can vote out the mayor, who appoints the police chief. Most concerning, said Costello, is that it is unclear if privately employed officers can be sued under state or federal civil rights statutes, like their public counterparts.
“If Princeton’s police officers violate the civil rights of somebody,” Costello said, “I can’t use the state or federal civil rights law without some danger that those claims might be dismissed, because even though both allow me to sue anyone who is ‘acting under color of law,’ that’s a debate when you’re dealing with a private individual who assumes the mantle of public action. It’s never a debate when it’s a public actor.”
Also, unlike public police departments, private campus police departments may not have to comply with the state’s Open Public Records Act. The Force Report was built from more than 72,000 documents obtained through hundreds of public records requests of municipal police departments and the state police.
Officials with Stevens and Monmouth told The Appeal that as private institutions they are not subject to the Open Public Records Act. Princeton’s Department of Public Safety, however, did comply with The Appeal’s records request. “The University’s Department of Public Safety follows guidance from the local prosecutor’s office and the state attorney general’s office in responding to requests for information under the Open Public Records Act,” a university spokesperson said in an email.
The New Jersey bill, if passed, would bestow already problematic protections on privately employed officers and their employers—entities that are not beholden to the public, said Costello. “When people are not accountable, people tend not to be safe,” he said.