QUALIFIED IMMUNITY

I have talked about it before here. Qualified immunity is bad.

The doctrine, created to protect police and their municipal employers from lawsuits by the US Supreme Court in 1967 at the height of the civil rights movement, essentially says police cannot be sued for wrongdoing unless the conduct violates “clearly established” law. It was originally intended to prevent lawsuits against officers who acted in good faith. However, it has since been expanded to the point where, unless you can find a prior precedent that matches almost exactly to your fact pattern, your lawsuit gets dismissed. It is difficult to “clearly establish” wrongful conduct of the police if it is almost impossible to sue them in the first place.

Qualified immunity is opposed by a broad coalition of organizations and people who generally do not agree on much: from the ACLU to the Cato Institute. Two-thirds of Americans favor repeal. President Biden has said he would like to see the doctrine “severely reined in.” Both conservative Justice Clarence Thomas and liberal Justice Sonia Sotomayor have criticized qualified immunity. And yet…

There are two ways to reform qualified immunity. Either the Supreme Court reverses itself and repeals the doctrine it created out of whole cloth or Congress acts to do so. Given principles of stare decisis (a deference to well-established previous jurisprudence) and the conservative composition of the court, the first option is unlikely. But this is the era of police reform, so perhaps the legislature will finally find the will to do something? Don’t hold your breath.

In 2020, former Rep. Justin Amash and Rep. Ayanna Pressley introduced legislation to get rid of qualified immunity. It picked up support from Democratic Senators and limited GOP support but ultimately went nowhere. Rep. Pressley reintroduced the bill this year, but it appears stuck in committee.

In March, The House passed the George Floyd Justice in Policing Act, which would specifically end qualified immunity for police officers (qualified immunity applies to essentially all government employees). There was hope. President Biden endorsed the bill and Republican Senator Tim Scott signaled a willingness to support the bill. A compromise was floated that would have shifted legal liability from individual officers to the police departments or municipalities themselves as one of the objections to eliminating qualified immunity has been that it would deter people from becoming police officers. Sen. Scott introduced his own bill that would have done just that. And, as seems to be a frequently recurring theme, liberals became their own worst enemy.

Instead of recognizing the political reality that any legislation to end qualified immunity is going to require 10 Republican votes and engaging in negotiations, numerous Democrats said the inability to sue individual police officers was a deal-breaker and the legislation died. Now, maybe if they had gone along with compromise negotiations, they still would not have gathered 10 Republican votes, but to take their ball and go home, for this reason, was monumentally stupid. It is a distinction without a difference. Individual police officers do not pay the civil verdicts and settlements, they don’t have the money to. Cities do. One recent study found that “governments paid approximately 99.98 percent of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.” So, the legislation died for a reason that does not even matter. Sigh.

It is easy to get discouraged when what seems like such an obviously good idea with such broad public support fails to gain traction in Congress. But the discussion and introduction of these failed bills started because of the public outcry over George Floyd’s murder and other heinous acts committed by police. If that outrage subsides, so does the feeling among lawmakers that it must be addressed. We must dig in for the long fight, recognize that the facts are on our side, and continue to apply pressure to our representatives to fix this awful doctrine.