Congressional Lawmaker Give Up Attempt To Dump Qualified Immunity In Police Reform Efforts

from the actual-accountability-is-still-just-a-dream dept

The judicial construct known as qualified immunity will continue to make it harder for people to obtain redress for rights violations… at least for the time being. While there has been a more sustained movement to reform law enforcement across the nation, thanks to cops doing the sort of stuff they've been doing for decades, qualified immunity seems particularly bulletproof.

It probably seemed like a good idea at the time. It provided government employees a way to avoid being entangled in frivolous litigation based on unsustainable allegations of rights violations. But since that point, it has morphed into an easy button for civil suits, a route cops can use to escape accountability for actual rights violations so long as they violate rights in a way courts haven't previously declared an obvious rights violation.

Last year, as protests against police brutality raged around the nation, federal legislators offered up a reform bill that would have altered qualified immunity, changing it from a de facto defense to something officers would actually have to prove in court. Rather than just offer up a motion to dismiss based on qualified immunity, officers would have to show their rights violations were performed in good faith, using more than a couple of boilerplate sentences. Evidence and justifications would need to be offered and, given the lack of an early out, more civil rights cases would subject officers to a jury of their peers, rather than a rote recitation of Supreme Court decisions before granting a dismissal.

Of all the things cops want to hold onto, qualified immunity is at the top of the list. Their legal reps -- housed in numerous police unions around the nation -- have an even greater desire to see this doctrine remain intact. These two entities hold a lot of power, and have held this power for years. And there's a certain contingent of legislators, at every level, who will never do anything that might be perceived as being anti-cop. So, the struggle continues. And, for the moment, hopes of seeing qualified immunity rolled back at the federal level have died along with the reform bill that once threatened this extra right granted to government employees.

Here's Marianne Levine and Nicholas Wu with more details for Politico.

Police reform negotiators are no longer considering changes to a controversial legal doctrine known as “qualified immunity," according to three sources familiar with the matter.

Qualified immunity, which shields police officers from civil liability for misdeeds, has remained one of the main points of contention in the police reform negotiations. It being taken off the table could make the final product tough to sell to progressives, who want to see it scrapped altogether and have been outspoken about their demands to change the doctrine. But Republicans have been firm that they have no interest in getting rid of qualified immunity.

What's being offered now is a "slimmed down" version. It appears it only needed to lose the qualified immunity alteration to get back to its fighting weight. Republicans refuse to budge on this point, making it all but impossible to move forward with the bill with this intact.

Some have suggested simply shifting the legal burden from cops to their employers in hopes of reducing police union opposition to qualified immunity reform. But that wouldn't solve the problem. It would only relocate it. And it would codify qualified immunity, making it that much more difficult to roll back in the future. As of now, it's solely a construct of the Supreme Court, albeit one that has considerable power.

For the moment, qualified immunity remains alive and well, an enabler of rights abuses by government employees. As long as it remains alive, cops will continue to abuse rights with near impunity. But, as long as cops continue to do that, they will continue to provide more motivation and ammo for those seeking to strip away this immunity judges have granted to far too many dangerously underqualified law enforcement officers.

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Filed Under: civil rights, congress, criminal justice reform, police, police reform, qualified immunity


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  • icon
    Koby (profile), 24 Aug 2021 @ 11:26am

    Bad Target

    But that wouldn't solve the problem. It would only relocate it.

    Worse than relocating the problem, it defeats the purpose. One important benefit of determining that an individual officer violated the rights of a citizen would be that the bad officer has to pay a price out of his own pocket. If the problem gets offloaded onto a city department, then the taxpayers pay the price of the officer's mistake.

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

    • identicon
      Anonymous Coward, 24 Aug 2021 @ 1:05pm

      Re: Bad Target

      Sorry, Koby.

      Police Departments insure their officers. When an individual officer is sued, it is the department, and thus the taxpayer who shells out. Almost never is the individual officer required to pay anything.

      But then, police officers are also not exactly highly paid, either. So you hear about million dollar settlements (and jury awards). No way is a beat cop going to pay more than a pittance of that, were it to come from his own pocket.

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

    • identicon
      Anonymous Coward, 24 Aug 2021 @ 1:21pm

      Re: Bad Target

      So, when are you going to tell us all about these conservative opinions that are being censored?

      Still waiting....

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

  • icon
    That One Guy (profile), 24 Aug 2021 @ 12:06pm

    'If we wanted reform we'd kill QI, we don't though so...'

    QI is probably the biggest enabler and protector of corrupt cops so it's not surprising in the least that police unions would fight tooth and nail to keep it as if individual cops risk being held to be personally responsible then that takes all the fun out of it. Likewise it's disappointing and disgusting but no surprise that the party of personal responsibility would be so vehemently against personal responsibility when it comes to cops, because as any good citizen knows the police are Never Wrong and the law should reflect that.

    If you want any meaningful police reform then QI is at the top of the list of things that need to go, refusing to do that and pretending that minor changes and toothless 'suggestions' will do the trick is just going to keep ramping up the pressure, furthering the divide between police and public and pushing more people into accepting the idea of gutting the institution and starting from scratch, or worse taking matters into their own hands and only a truly deranged mind should look forward to open warfare on the streets.

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

    • identicon
      Anonymous Coward, 25 Aug 2021 @ 7:59am

      Re: 'If we wanted reform we'd kill QI, we don't though so...'

      As a general concept, QI has some merits but it’s been taken way too far to allow officers to get away with all sorts of conduct that should be obviously improper.

      Reforms requiring one to prove good faith to get qualified immunity is a great start. It’s true get out of jail card and it should require more than simple declarations to obtain it. Just because nobody was previously convicted of the offense in that district doesn’t mean a reasonable person (or a trained officer in this case) shouldn’t be able to draw an informed conclusion about how constitutional an action is.

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

  • icon
    Thad (profile), 24 Aug 2021 @ 12:14pm

    Tim, why doesn't this article have the words "Senate" or "filibuster" anywhere in it? That's what you're talking about, but for some reason you never actually say that's what you're talking about.

    The bill, with the language to strip QI, has passed the US House. In order to pass the Senate, it needs 60 votes to override a filibuster, or 51 votes to change the filibuster rules.

    Those basic facts are necessary to understand what's happening here, and yet you don't mention them at all -- you don't even draw a distinction between the Senate and the House; you just make a vague reference to "federal legislators" (or, as they're more commonly known, Congress). You don't even seem entirely clear on which bill you're talking about, as you reference the bill from the previous Congress instead of the one from the current Congress.

    This article feels like it really could have used more time in the oven.

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

  • identicon
    Anonymous Coward, 24 Aug 2021 @ 2:12pm

    Absolutely disgraceful that those paid out of our tax deductions, paid to protect and serve us, the public, the ordinary people, can do whatever the fuck they want, good or bad, to whoever they want and totally get away with it, no redress, no punishment, nothing! This must surely be the start of the complete breakdown of law and order, the breakdown of a law-abiding society! How can anyone now, honestly call the usa 'the land of the free, home of the brave'? The whole country is going to rat shit and the ones who should be stopping it are the ones causing and encouraging it! God help us all!

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

  • icon
    That Anonymous Coward (profile), 24 Aug 2021 @ 3:09pm

    Until cops start harming the base of the GQP just because they can, and thats never going to happen just look how many attended Jan 6 and helped, they will keep QI.

    It helps keep the narrative of POC are very dangerous and only the thin blue line can protect innocent white folk. Until some cops start doing the same things to their sons & daughters they will stick with the that shoudl have just followed directions or been acting less black.

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

    • icon
      Thad (profile), 24 Aug 2021 @ 3:24pm

      Re:

      Until cops start harming the base of the GQP just because they can, and thats never going to happen just look how many attended Jan 6 and helped, they will keep QI.

      Or until Manchin and Sinema quit playing their look-at-me-look-at-me game and vote for filibuster reform.

      I'm in favor of eliminating the filibuster, but I'd even be okay with a compromise -- bring back the standing filibuster, require 40 votes to oppose cloture rather than 60 to achieve it, something along those lines.

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

  • icon
    Lostinlodos (profile), 25 Aug 2021 @ 2:29pm

    Qualify

    Qualified immunity has it’s place.
    Take this:
    When a suspect runs from the police into a dark alley, shoved their hands into their jacket pockets, then suddenly turns and points to the officers…. Suspect gets shot.
    Such issues are where the premise comes from!

    Yes, it’s abused. Kicking the suspect in the chest after they are on the ground, for instance.
    Or running over the guy on the motorcycle to stop a chase.

    The answer is not to ‘do away with’ but to qualify “qualified”!

    The vast majority of police shootings happen because of what the suspect, or other persons at the scene, do.
    It’s not always the best choice, but it’s not the wrong choice.

    The problem, in my opinion, is when you go from such occurrences to ‘he ran so far I had to make sure he stayed down’ to justify hitting someone so hard and so much they literally crap themselves!

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

    • identicon
      Anonymous Coward, 25 Aug 2021 @ 10:43pm

      Re: Qualify

      I was wondering when you'd show up to justify the police shooting someone for being unable to follow the order of "put your hands on your head and freeze".

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


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