I agree that qualified immunity is a harmful and bogus precedent that needs to be eliminated. But my point is that if they are acting outside written department policy, then they're no longer acting as an agent of the state in the first place. Like when a cop beats their spouse, they can't claim qualified immunity as if it were part of their policing duties. The same standard should apply during daylight hours when they depart from the mandate of their employment.

> But my point is that if they are acting outside written department policy, then they're no longer acting as an agent of the state in the first place.

That's not how the courts have treated it.

https://www.npr.org/2021/10/18/1047085626/supreme-court-poli...

> In practice, the doctrine has shielded officers from liability in hundreds of civil cases, even when accused of destroying property, killing innocent people they mistook for suspects or stealing thousands of dollars.

(I would presume stealing thousands of dollars is forbidden by most department policies.)

I responded to the qualified immunity bit, but qualified immunity is actually somewhat of a red herring. It certainly does need to be eliminated, but it is not the main problem. In fact the focus on it smells a bit like the common pattern of hoping that occasional extreme penalties on individuals will reform a situation that has poor diffuse incentives.

The main problem is extending blanket sovereign immunity to these actions/positions in the first place. Let's say someone is arrested, even on a good faith suspicion of a bona fide crime, and is then later acquitted or the charges are dropped. From the victim's perspective, what has actually taken place is a kidnapping and false imprisonment. But the current framework just writes off what happened to them as collateral damage, leaving the unlucky individual to fully suffer it. What has actually happened is that they've suffered an externality of policing, for which they should be reimbursed for, with the damages rolled into the overall police budget so that it reflects the true cost of the police department.

Right now these externalities are being covered by a perverse reverse lottery of unlucky citizens, and that is not right. Reform this perverse incentive and correctly attribute blame (economic blame, at least), and many other incentives will fall out from that.

Qualified immunity pertains to civil liability and therefore wouldn’t be relevant to the parent comment’s suggestion.

Qualified immunity prevents civil recourse when police, their unions, and friendly/reliant prosecutors successfully prevent criminal liability from being an option (https://www.washingtonpost.com/crime-law/2020/05/29/charging...).