Co-founders of Ben & Jerry’s ice cream push to make it easier to sue police officers, eliminate qualified immunity


BURLINGTON, VT — Ben Cohen and Jerry Greenfield, co-founders of Ben & Jerry’s ice cream, are both co-chairs of a social-justice campaign to end “qualified immunity,” a legal doctrine that shields law enforcement officers from being personally sued for actions performed in the line of duty.

Critics claim the doctrine is not legally grounded and that it shields government officials, including law enforcement, from accountability. Reform advocates say allowing law enforcement to be personally sued is a key step toward police reform.

Defenders of the doctrine say it protects law enforcement officers who have to make snap decisions in potentially life-threatening situations.

CNN Business reported that Cohen and Greenfield are promoting “The Campaign to End Qualified Immunity” as individuals. The campaign is based in Vermont, and its coalition consists of “business leaders, creative artists, athletes, advocates and lawyers dedicated to ending qualified immunity.”

CNN reported that activist Shaun King, rapper Michael “Killer Mike” Render and other reform advocates joined a virtual press conference that was held on Jan. 26 to announce the launch of the new campaign.

Advocates for qualified immunity reform include Republicans, such as U.S. Rep. Tom McClintock of California and Indiana Sen. Mike Braun, and Democrats like Massachusetts Rep. Ayanna Pressley and New Jersey Sen. Cory Booker, according to CNN.

The campaign’s website states:

“The campaign seeks to educate the public by sharing stories of people who have been harmed by public servants and qualified immunity and build public demand for reform.

“In order for police officers and law enforcement agencies to build public trust, there has to be accountability. Ending qualified immunity is just the first step in the long process of building a better criminal justice system.

“This country is what we make it, and the Campaign to End Qualified Immunity, as well as its partnered groups, strives to make our nation more just.”

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Qualified immunity was created in 1967 by the Supreme Court, which may soon revisit looking at the doctrine it created. Qualified immunity has been criticized in recent years by legal scholars, judges and even Supreme Court justices on opposite sides of the ideological spectrum.

In more recent years, Supreme Court Justices Clarence Thomas and Sonia Sotomayor have each criticized qualified immunity, suggesting it threatens constitutional protections.

Critics of qualified immunity and its expansion over the years say it hinders the protection of civil rights in at least three ways.

First, critics say the doctrine basically ensures that victims of brutality or harassment by government entities, including law enforcement, obtain no relief in court and have no ability to hold offenders accountable for misdeeds.

Second, victims of civil rights violations are unlikely to find a lawyer willing to represent them. Due to qualified immunity, lawyers generally avoid these cases because they will not recover the cost of their time in preparing a lawsuit that is almost guaranteed to get dismissed automatically.

According to the group  The Appeal:

“As part of a civil rights law passed in 1976, Congress tried to create an incentive for lawyers to represent victims in civil rights actions and ensure that constitutional rights are safeguarded.

“To do so, Congress guaranteed that lawyers who represent victims in successful civil rights actions would be able to recover the cost of their time.

“A huge number of lawyers who bring civil rights actions rely on this law or on the possibility of contingency fees in the event they succeed.”

Third, to overcome the defense of qualified immunity, a victim must show courts ruled in previous cases considering similar facts that police were not covered by qualified immunity. If the abuse had never been considered by a court before, then the victim is out of luck and the case is dismissed. As a result, critics say victims of police misconduct are prevented from being able to sue for damages.

Scott Michelman, legal director for the ACLU of the District of Columbia, told Huff Post:

“The Supreme Court has really undercut the deterrent value of constitutional rights in preventing police abuses by making it extremely hard to hold officers accountable.”

Supporters of qualified immunity say it is needed to protect law enforcement officers from frivolous lawsuits. Others say ending the policy would discourage people from choosing careers in law enforcement.

Federal Law Enforcement Officers Association president Larry Cosme wrote in a letter last June:

“There is a lot of negative reporting right now regarding qualified immunity and [the] majority is inaccurate.

“Law enforcement need qualified immunity in order to carry out their jobs.

“Law enforcement is required to make split-second decisions. Without qualified immunity they may be hesitant to act when it is most needed.”

The goal of the campaign is to educate the public about qualified immunity and build support for a federal law to end it. Supporters are encouraged to contact their elected representatives and ask them to end the doctrine. They are also encouraged to contact media to push for ending qualified immunity.

Last June, the House passed the Ending Qualified Immunity Act, but it died in the Senate. However, with the election of President Joe Biden there is confidence that a new bill will be put forth.

Campaign organizer Melana Dayanim told CNN Business:

“Once there is a bill, which we think there will be pretty soon, the action will be more concrete.”

During his 2020 presidential campaign, Biden supported reforming qualified immunity. In addition,Vice President Kamala Harris and two of Biden’s Justice Department nominees, Vanita Gupta and Kristen Clarke, also publicly supported ending the doctrine.

Despite Biden’s sponsoring of the heavily criticized 1994 Crime Bill, which led to the mass incarceration of mostly black males, some believe the president will redeem himself by moving quickly to end qualified immunity.

King said he hopes Harris, Gupta and Clarke can push Biden to become the next Lyndon B. Johnson. As a Texas senator, Johnson supported the segregationist agenda of Dixiecrats in his time, but as president he changed and pushed progressive policies. King said:

“I just wonder if Joe Biden will step up in the way that Lyndon Johnson stepped up.”

In the wake of George Floyd’s death last year, support for the ability to sue police officers has grown. A Pew Research poll last July indicated two-thirds of Americans support giving civilians the power to sue officers for misconduct. The poll noted:

“Among Republicans, there are sizable divides by age when it comes to whether civilians should be able to sue the police: 61% of Republicans ages 18 to 29 say civilians need to have the power to sue police officers in order to them accountable, compared with about half of those 30 to 64 (47%) and just 31% of those 65 and older.

“While at least three-quarters of Democrats in all age groups say that civilians should be able to sue the police, younger Democrats are more likely to say this: 87% of Democrats ages 18 to 29 say civilians need the power to sue the police, while slightly fewer Democrats 65 and older say the same (79%).”

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