Citizens of the world are rising up to protest police brutality. Yet in West Virginia—where numerous towns are small enough for residents to know their local police officer or sheriff by first name—many Mountaineers refuse to believe there’s a policing problem. But for families of West Virginia natives like Freda Gilmore and Wayne Jones, the problem is all too real. Black West Virginians are 5.5 times more likely than whites to be killed by the police, despite making up only 3.6% of the state’s population. Police are abusing their powers with next to no accountability, and our cities are paying for it. One way we can limit this abuse, holding law enforcement agencies accountable for officers’ wrongdoings and saving valuable taxpayer money, is by eliminating qualified immunity in the state of West Virginia.
The history of qualified immunity begins with the Civil Rights Act of 1871. It provided Americans with the right to sue public officials who violate citizens’ legal rights, thereby limiting law enforcement’s abuse of power. In 1967, the Supreme Court placed limitations on this right with the establishment of qualified immunity. It created an exception for officials who acted in “good faith.” In other words, as long as law enforcement officers believed that they weren’t breaking the law, they couldn’t be sued for their harmful actions. The Court then expanded this in 1982, declaring that even if officers didn’t act in “good faith,” they couldn’t be charged unless the victim could prove that their right to sue was “clearly established” in a previous court case.
Imagine an officer violates one of your legal rights. In order to sue that officer for damages in civil court, you’ll have to find a previous case where another officer did the exact same thing to another civilian, down to the last detail. Considering the hundreds of details that can make your case unique, it becomes nearly impossible to prove something as “clearly established.” As West Virginia Delegate Sammi Brown puts it, “it puts officers above the law, above justice.”
Victims of police brutality often choose to sue the city that hired the officer, since they have a better chance of settling with the city than winning against an officer in court. City settlements can range from thousands to millions of dollars, which are, in part, funded by state taxes. In other words, West Virginia taxpayers are paying for their city’s settlements.
Qualified immunity is affecting all of us.
Just this year, two West Virginian cities made very public settlements with victims of police brutality. The city of Charleston agreed to pay $80,000 to the trust of a young woman, Freda Gilmore, who was beaten by a Charleston Police Department officer while unarmed and pinned to the ground. The city of Martinsburg settled to pay $3.5 million to the family of Wayne Jones, a homeless Black man who was shot and killed 22 times by five Martinsburg Police Department officers. Many of those shots occurred after Jones was incapacitated. If victims or their families were able to sue the agencies or officers, taxpayer money wouldn’t be used. Yet, as the ACLU of West Virginia Policy Director Eli Baumwell explains it, “qualified immunity keeps people from [bringing claims to] court in the first place,” for fear of automatic dismissal.
Although the federal courts created qualified immunity, it’s possible for state legislatures to limit it through legislation like Colorado’s Enhance Law Enforcement Integrity Act. This law allows residents of Colorado to sue local law enforcement officers, sheriff’s deputies and state patrol officers in state court if the officers violate, or fail to stop the violation of, the state Constitution’s Bill of Rights. More importantly, the law eliminates qualified immunity as a defense. Since this is an institutional issue, law enforcement agencies, not the officers, bear the brunt of the costs and accountability. Individual officers are only liable if their actions aren’t in “good faith,” or they are criminally convicted.
This legislation could markedly reduce the number of costly city settlements for police abuse, saving valuable taxpayer money. Considering the millions of dollars that West Virginia cities have spent in 2020 settlements alone, it would be in the best interest of all West Virginia taxpayers, and their local representatives, to support legislation that would allocate our taxes to services in need, such as our public schools or local roads.
If you believe officers should be held accountable—like we, as civilians, are—or think your city is misusing your taxes, call your local legislators and demand a bill like Colorado’s Enhance Law Enforcement Integrity Act be placed on the agenda for the next legislative session. West Virginia doesn’t need qualified immunity. We need assurance that our officers will truly protect and serve our communities. Otherwise, they’ll be held accountable for their actions.
