Federal Legislators Take Another Run At Ending Qualified Immunity

from the no-longer-above-the-law,-but-subject-to-it dept

Last summer as protests raged around the nation in response to the killing of an unarmed black man by a white Minnesota police officer, federal legislators offered up a solution to one of the hot garbage problems of our time. A federal police reform bill contained a number of fixes to policing in America, including one crucial element that would make it far easier for citizens to pursue lawsuits over rights violations: the termination of the qualified immunity defense.

Over the years, qualified immunity has morphed from a limited protection for officers to allow them to make split-second decisions in dangerous situations to a blanket excuse for rights violations. Thanks mainly to the US Supreme Court, qualified immunity now shields officers from large numbers of legitimate accusations of rights violations. SCOTUS has shifted the emphasis to judicial precedent, rather than any discussion of the alleged violations brought before federal court judges. As long as law enforcement personnel violate rights in new ways that aren't covered by existing precedent, the officers are allowed to dodge lawsuits, juries, and fact-finding.

The Supreme Court has made it easier for lower courts to dodge questions about rights violations -- and, in turn, prevent them from establishing new precedent -- by forcing them to defer to a limited test that only involves established precedent and a very limited examination of the facts of the case. Only recently has the Supreme Court realized it may have had this wrong. Two remands to the Fifth Circuit Court of Appeals (the circuit most protective of cops) in the past few months indicate the nation's top court now feels the lower courts have followed its damaging instructions too closely.

So, there may be hope going forward. But it will be slow in arriving and still somewhat limited by the Supreme Court's precedential blanket instructions on QI cases. Nonetheless, there is hope.

What may be faster-acting is some federal legislation. Far too often, courts defer to legislators who seemingly have zero interest in deterring the wreckage qualified immunity has wrought. Asking politicians to go head-to-head with some of their most powerful supporters is kind of a non-starter. But if it's legislation courts are demanding, at least a few legislators are willing to give it to them.

The last effort to eliminate qualified immunity died quietly, even as cities continued to burn. The effort has been renewed by a bipartisan group of legislators who have seen immunity and the damage done and refuse to offer their tacit blessing of this accountability escape hatch by doing nothing. Akela Lacy has more details for The Intercept:

Rep. Ayanna Pressley and Sens. Ed Markey and Elizabeth Warren, Democrats of Massachusetts, are introducing a bill to fully end qualified immunity, a legal doctrine that protects police and law enforcement officials from civil liability in cases where they are accused of violating someone's constitutional rights.

The "Ending Qualified Immunity Act" [PDF] would do exactly that, building on Rep. Justin Amash's attempt to terminate this bullshit last year, when the irons were hot and setting fire to precinct houses. The bill notes law enforcement has been on the wrong side of history since the Ku Klux Klan Act of 1871. Since then, law enforcement hasn't bothered to correct its course. It engages in biased policing pretty much all the time and sinks its funding into efforts that reinforce its foregone (and often bigoted) conclusions.

As the bill points out, qualified immunity actually subverts the intention of federal legislators. It was created solely by a single court with no deferral to legislators who had already expressed their intent through this legislation, which created a cause of action for citizens whose rights had been violated.

This doctrine of qualified immunity has severely limited the ability of many plaintiffs to recover damages under section 1983 when their rights have been violated by State and local officials. As a result, the intent of Congress in passing the law has been frustrated, and Americans’ rights secured by the Constitution have not been appropriately protected.

In short, screw qualified immunity. It undercuts the Constitution as well as legislative intent. With this bill, QI would no longer be considered a defense to allegations of rights violations.

It shall not be a defense or immunity to any action brought under this section that the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when it was committed. Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the Constitution or Federal laws were not clearly established at the time of their deprivation by the defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.

This doesn't prevent cops from escaping civil rights lawsuits. They still can. But they can't do it with a motion to dismiss prior to any fact-finding. Instead, they'll have to deal with lawsuits like most civilians have to: by bringing their own evidence and waiting for a judge to rule on the merits. In some cases, this will mean going to trial. And going to trial should never be considered a failure of the system. That's supposed to be the desired outcome. Instead, we've been given years of cops pressing the eject button and simply nodding along as allegations remain unaddressed, even when the courts are still supposed to assume plaintiffs' allegations are true.

This won't be the litigation apocalypse cops will claim it to be. Instead, it will put them on the same playing field the rest of us have to work with. Government employees should be holding themselves to higher standards. This bill only demands law enforcement officers abide by the same rules governing non-cop-related litigation.

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Filed Under: congress, police, protests, qualified immunity


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  • identicon
    Rekrul, 4 Mar 2021 @ 11:21am

    I'd feel much better about this actually going somewhere if the democratic party didn't have two republican Trojan horses within their ranks, Joe Manchin and Kyrsten Sinema, opposing everything they want to do. :(

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 4 Mar 2021 @ 11:26am

    You know, it occurs to me that you could drastically cut down on the amount of police abuse without ending QI. Just change the rules so that when citizens do successfully sue the police for violating their rights, the officers involved and the police department itself have to pay the settlement rather than the city paying it with taxpayer money.

    If the officers knew that violating someone's rights could cost them their home, I'll bet they wouldn't pull half the stuff that they do now. And if a police department knew that a successful lawsuit could wipe out their entire budget, I doubt they would be so willing to look the other way on bad cops.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 4 Mar 2021 @ 11:41am

    While I'm sure this will receive some hefty pushback from those that believe that law and order are only for the peons it is long overdue, as those given power and authority by the public should be held to higher standards, not no standards.

    The idea that those tasked with upholding the law should have effective immunity from it is a legal abomination that never should have been created, and it's one that needs to die sooner rather than later.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 12:09pm

    Odd thought

    One thing I find weird about Qualified Immunity and the emphasis of judicial precedent is that it seems Judges believe that officers should only be responsible if they violate rights in new and novel ways. This means that Judges believe that officers are fully up to date and aware of all judicial precedent and should not violate rights in ways that have previously been identified as wrong.

    So Officers are capable of being knowledgeable about and complying with judicial precedent, which is constantly changing. But are incapable of being knowledgeable about and complying with laws, which change much less frequently.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Mar 2021 @ 12:10pm

      Re: Odd thought

      *should not be responsible if they violate rights in new and novel ways.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 4 Mar 2021 @ 12:21pm

      Re: Odd thought

      To far too many judges(read: higher than zero) police are treated as literally the dumbest people on the planet, utterly incapable of even the most basic of judgement calls and critical thinking and who require everything to be spelled out in precise detail for them to know what is and is not acceptable.

      As horrifying and wrong as that is it gets even more disturbing when you consider that we're talking about a profession that has a gun as part of their standard gear, leading to the insanely screwed up scenario of people in the profession being treated both as too stupid to be held accountable for their own actions and responsible enough to be given a deadly weapon.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Mar 2021 @ 3:04pm

        Re: Re: Odd thought

        >> To far too many judges(read: higher than zero) police are treated as literally the dumbest people on the planet

        Well to be fair, the judges do have to interact with the police on a fairly regular basis so perhaps they can be excused for that opinion.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 4:53pm

    So how are the NYPD supposed to manage their backlog of suspects to rape in the police cars now?

    Or the Chicago PD expected to handle the dozens of black male corpses they haul out of Homan Square on a monthly basis?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Mar 2021 @ 2:22am

    we don't want to be held ACCOUNTABLE dept.

    the way QI is abused is sickening! DAs will look to see if a blue lies mafia criminal can be sued in court... if NOT! no charges! nevermind policy's, laws, public outcry, or there blatant disregard for there victims!

    there is whole lot more that needs to be done at the federal level before WE THE PEOPLE will start to trust the police!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2021 @ 1:21pm

    A good start, but only a start

    QI is only part of the problem.

    There are many other issues, from selective enforcement to civil asset forfeiture, which need to be fixed. I would not advise anyone currently outside the US to travel to or through that horrible place - and merely scrapping QI while leaving everything else broken is not going to change that.

    reply to this | link to this | view in chronology ]


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