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.