Qualified immunity is emerging as a key sticking point in the congressional debate over reforming the police.
The legal doctrine, which can protect police officers from civil lawsuits, is facing fresh national scrutiny in the wake of George Floyd’s killing in the custody of Minneapolis police.
But what, if anything, to do to change it is creating deep divisions in Congress, just as lawmakers are trying to find a larger deal.
A Democratic proposal would make sweeping overhauls to the legal doctrine. But GOP senators, backed by the White House, say changes are largely a non-starter.
Asked about the chances that overhauling qualified immunity ends up in a final police reform bill, Sen. John Thune (S.D.), the No. 2 Senate Republican, indicated that, based on early conversations with members, many would not be able to support it.
“That may be, you know, a bridge too far for a lot of our members,” he said.
Sen. Tim Scott (R-S.C.), who is spearheading a Republican police reform proposal, said that he believes a host of provisions supported by Democrats, including ending qualified immunity, would not have enough support to make it into a final package.
“I don’t see how those things get to the finish line,” he said.
Sen. John Cornyn (R-Texas) said that he wanted Congress to get a bipartisan deal but that some proposals, like eliminating qualified immunity, “would be a lot more controversial.”
“It’s a tough job under any set of circumstances and to have lawsuits filed which sort of flyspeck what you did or didn’t do at a time when you didn’t know whether you know, somebody is trying to kill you or not. … I think you need that sort of balancing of interests that qualified immunity provides,” Cornyn said.
Scott and a group of Republicans are drafting a police reform bill responding to Floyd’s death that could be released as soon as this week. That bill, according to multiple GOP senators, is not expected to end qualified immunity.
Some GOP senators have signaled they are open to discussing qualified immunity but acknowledged that they are outnumbered by Republican colleagues who oppose making changes to it as part of a reform deal.
“Most in our conference don’t want to go that far, but I’m not ruling it out. I want to see if I can get a few others interested in looking at that as well, because I think that’d be the one thing that would show that, in our conference, we mean business,” said Sen. Mike Braun (R-Ind.).
Both the White House and Attorney General William Barr have signaled they would not support proposals to scale back qualified immunity.
President Trump is “looking at a number of proposals, but there are some non-starters in there, I would say — particularly on the immunity issue,” White House press secretary Kayleigh McEnany told reporters this week.
Qualified immunity, developed through a handful of Supreme Court rulings, protects police officers from being held personally liable if their actions do not violate a “clearly established” law. There are currently eight cases related to qualified immunity under consideration by the Supreme Court, though justices would need to agree to hear the cases. Justices Clarence Thomas and Sonia Sotomayor have both voiced skepticism about the legal doctrine.
Critics argue that its intent, to protect police officers from frivolous lawsuits, has instead been stretched to make it difficult for someone to sue a police officer even in cases where they believe there are clear examples of excessive force or violations of civil rights.
A Reuters investigation found that police were granted immunity in more than half of 252 appeals court cases from 2015 to 2019.
Democrats have included a provision in their bill that would make fundamental changes to qualified immunity.
It would “eliminate the dubious court-made doctrine of qualified immunity for law enforcement,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said on Wednesday.
The bill, which is expected to be voted on in the House this month, would allow for individuals to receive damages in civil court “when law enforcement officers violate their constitutional rights by eliminating qualified immunity for law enforcement,” according to a Judiciary Committee fact sheet.
The bill would specifically say that a defendant is not immune from lawsuits because they were acting in a way they thought was reasonable or lawful at the time or because they weren’t violating a “clearly established” law.
Sen. Dick Durbin (Ill.), the No. 2 Democratic senator, said changes to qualified immunity would have to be in a police reform deal in order to get his support.
“The standard is impossible. You virtually have to produce an identical set of facts to ask the court to hold anyone in law enforcement accountable. You have to find an identical set of facts as a previous case, and that is almost impossible,” he added.