Over the last several years, our country has been awash in protests over police brutality cases. Now, Congress and some states are looking at eliminating the legal shield — known as “qualified immunity”— that protects officers from lawsuits over their conduct; and the state of Hawaii is one of them.
Hawaii’s Legislature is considering Senate Bill 783, which creates an avenue to hold police accountable when they, for example, shoot unarmed people in the back — something that recently happened in Honolulu and for which the officer was never disciplined. While SB 783 does not eliminate qualified immunity for federal civil rights claims, the bill provides relief to victims of police violence by allowing them to bring state claims against officers and explicitly bans the application of qualified immunity to these cases.
As it stands now, when suing a state law enforcement officer under the Hawaii Constitution for violating someone’s constitutional right, qualified immunity protects state officers from liability as long as they did not act with malice. In theory, the idea behind qualified immunity is to protect officers from frivolous lawsuits allowing them to perform their duties without the constant worry of being second-guessed and sued. Since it’s difficult to prove what an officer was thinking, the defense makes it nearly impossible for victims to succeed in court. In practice, qualified immunity means that police officers can get away with violating your rights as long as they violated them without malice.
Let’s take a look at the case of Delmar Espejo, a houseless, unarmed, 5-foot-3 inch, 117-pound man with a physical disability, who was shot in the back and killed by a deputy sheriff at the state Capitol. Although the case is still pending, the facts illustrate why I support the passage of SB 783. According to the state Department of Public Safety, Espejo was shot in the upper torso during a struggle with the deputy sheriff after Espejo did not respond to commands to vacate the Capitol ground. And by “upper torso” DPS apparently meant that Espejo was shot in the back.
The department claimed that the deputy feared for his safety. The Attorney General decided there was insufficient evidence to press charges against the deputy. Other than the deputy who killed him, the only witness to this incident is Espejo, and he’s dead. If Espejo’s family wanted to sue the deputy for violating his civil rights, they would have to prove that at the time the deputy shot Espejo, he did so with malice, and qualified immunity would allow the deputy to say that he was not acting with evil intent and thought Espejo might cause him harm or take his gun in the struggle, and things happened so fast that he shot, and the bullet landed in Espejo’s back.
In other words, if the officer could truthfully say that he was not angry but was scared, qualified immunity would kick in, and no one would be accountable.
If passed, SB 783 addresses situations like this. The bill deters police misconduct and offers an avenue for relief for families like Espejo’s by allowing those who have had their constitutional rights violated by a police officer to bring a civil action against the rogue officer and ask for money damages and reasonable attorney fees. Officers could be civilly liable for using excessive force or failing to intervene when they see other officers engaged in unlawful conduct. This accountability is long overdue.
SB 783 would finally give citizens the legal means to hold officers accountable for their wrongful conduct.
Kenneth Lawson is co-director of the Hawaii Innocence Project at the William S. Richardson School of Law and an American Civil Liberties Union of Hawaii board member.
