Police reform fight hinges on qualified immunity

A partisan divide over the legal doctrine shielding police officers from civil lawsuits is one of the last major obstacles to Congress striking a deal on a comprehensive policing reform bill.

Ending what’s known as qualified immunity has been the chief policy goal of advocates for police reform in the year since George Floyd, a Black man, was killed by a white officer in Minneapolis.

Legal scholars and progressive advocates say the doctrine has long been a major obstacle to police accountability across the country.

Qualified immunity shields law enforcement and other public officials from liability in civil lawsuits unless plaintiffs can show that their allegations amount to a violation of constitutional rights and that those rights are “clearly established” law, requiring precedent from a previous case showing courts have sided with plaintiffs in similar circumstances.

Those two legal thresholds, according to congressional Democrats and advocates who want qualified immunity axed, are often insurmountable for victims of police misconduct.

Eliminating qualified immunity would have “tremendous expressive value,” Jeffrey Fagan, a professor at Columbia University’s law school, told The Hill.

“It says to the public: We’re aware of police wrongdoing and we want to hold them accountable in exactly the same way that we as government want to hold civilians accountable for their criminal behavior.”

The push for increased accountability has gained momentum following the 2020 police killings of Breonna Taylor, Floyd and numerous other Black Americans.

In an April poll conducted by Vox and Data for Progress, 59 percent of likely voters responded that they either “somewhat” or “strongly” supported the end of qualified immunity.

But on Capitol Hill, there’s been virtually no bipartisan progress toward ending qualified immunity in the year following Floyd’s death.

The George Floyd Justice in Policing Act — introduced by Rep. Karen Bass (D-Calif.) in June after Floyd was murdered by former Minneapolis police officer Derek Chauvin — seeks to get rid of qualified immunity for officers and would lower the threshold for civil rights violations by law enforcement. 

Republicans have introduced their own police reform legislation that shares significant overlap with the Floyd bill, though it leaves qualified immunity untouched.

The three main congressional negotiators — Sen. Cory Booker (N.J.), Sen. Tim Scott (R-S.C.) and Bass — issued a joint statement Monday saying that while they “are still working through our differences on key issues, we continue to make progress toward a compromise and remain optimistic about the prospects of achieving that goal.”

Congress is missing a self-imposed deadline for a vote on Tuesday, the anniversary of Floyd’s death.

GOP lawmakers are adamantly opposed to gutting qualified immunity, arguing that doing so would make it easier for police officers to be hit with federal civil rights infractions. Republicans also say it would shrink the talent pool for police departments and make it harder for officers to do their jobs.

Fagan, though, largely disputes those claims.

“I’m sure there’ll be some people who will do that, who will not go into law enforcement. But I think a person who’s likely to reject law enforcement because of a qualified immunity issue has a certain picture of law enforcement — both of the necessity for violence and the inevitability of violence — that will get them into trouble,” Fagan said.

Law enforcement associations see the legal doctrine as an important protection for officers who often have to make difficult decisions in real time.

“It is almost impossible for an officer to determine how a legal doctrine will apply to a split-second factual scenario,” Patrick Yoes, national president of the Fraternal Order of Police, wrote in a letter to Congress this year. “Thus, unless there is existing precedent that squarely governs the facts before the officer, the reasonable officer needs to be afforded a certain degree of discretion to make split-second decisions in situations that could put lives, including their own, at risk.”

Negotiations around the Floyd police reform bill have mainly focused on policy points over what civil lawsuits police can face regarding alleged rights violations, but it’s uncertain what a bipartisan agreement would look like.

Inimai Chettiar, federal director of the bipartisan Justice Action Network, told The Hill that Democrats were “warming up” to a middle ground proposal of having either municipalities or police departments take on greater liability when it comes to police misconduct.

Sen. Lindsey Graham (R-S.C.) signaled being open to that approach late last month when families of police violence victims, including Floyd’s younger brother Philonise Floyd, visited Capitol Hill to meet with lawmakers about progress on the legislation.

“Legal liability drives change. If you’re making a car and you can get sued if you make a bad car, you’ll think better about making cars,” Graham told reporters at the time.

“So having the department, not the officer, being the defendant is probably a good change. It takes a lot of pressure off cops — they can still be prosecuted if they did something criminally, but it can’t be strict liability.”

The House-passed version of the George Floyd bill would remove qualified immunity protection from state and local law enforcement officers while leaving it in place for federal government officials.

Some advocates are encouraged by the possibility of a bipartisan compromise that would at least reduce blanket immunity, but others warn that “half measures” could also hurt legal efforts to redress unconstitutional behavior.

“Due to the immense harm that qualified immunity has caused, this judge-made doctrine must be ended across the board to ensure government accountability and encourage courts to play their historic role of redressing abuse of power, as [the law] intended,” a coalition of 88 advocacy groups, led by the Constitutional Accountability Center, wrote in a letter to Senate leaders this month. “It should not be codified into law by removing, reforming, or modifying the immunity for some government actors but not for all.”

During the Reconstruction era, Congress passed a civil rights law that gave individuals the ability to bring civil lawsuits against state officials accused of violating someone’s constitutional rights.

But a series of Supreme Court decisions a century later established the qualified immunity doctrine that imposed legal thresholds for plaintiffs that activists and legal scholars say are nearly insurmountable and fly in the face of Congress’s intent to allow citizens to seek justice against government officials and law enforcement officers who abuse their power.

Critics say that the doctrine puts victims of police misconduct in a Catch-22 since qualified immunity itself often prevents the courts from setting the precedents necessary to overcome the legal thresholds needed to hold an officer accountable.

Those who want to see qualified immunity eliminated argue it’s a doctrine that was created and perpetuated by judges who disregarded Congress’s intent with the Reconstruction-era law.

Praveen Fernandes, vice president of the Constitutional Accountability Center, says that while the courts may have created the problem, lawmakers should not rely on litigation to end it.

“Congress could do this tomorrow, while the Supreme Court has to wait for the right test case to come up,” Fernandes said. “I think the urgency is that periodically the American public grapples with the problems that many communities have faced day in and day out for many years. There is a renewed public attention on these issues and Congress making use of the public grappling in this moment is important.”