Qualified Immunity

Rep. Justin Amash Wants To End Qualified Immunity. Where Are the Republicans?

The GOP claims to be the party of freedom. If that's true, they should rethink policies that embolden bad police behavior.


Rep. Justin Amash (L–Mich.) wants to end qualified immunity.

The insidious legal doctrine allows police officers to violate your civil rights with absolute impunity if those rights have not been spelled out with near-identical precision in preexisting case law. Theoretically, it protects public officials from bogus civil suits, but practically it often allows egregious misconduct.

George Floyd's death at the hands of former Minneapolis cop Derek Chauvin forced new life into the debate, shining light on a doctrine that many people say has contributed to an environment of police abuse. Amash announced late Sunday that he would introduce the End Qualified Immunity Act, with Rep. Ayanna Pressley (D–Mass.) signing on as a cosponsor Thursday.

"It is the sense of the Congress that we must correct the erroneous interpretation of section 1983 which provides for qualified immunity," the bill reads, "and reiterate the standard found on the face of the statute, which does not limit liability on the basis of the defendant's good faith beliefs or on the basis that the right was not 'clearly established' at the time of the violation."

That "clearly established" bit is what's most important, as the standard has become increasingly impossible to meet. Two cops in Fresno, California, were afforded qualified immunity after allegedly stealing $225,000 while executing a search warrant because it had not been "clearly established" in case law that stealing is wrong. An officer with the Los Angeles Police Department was given qualified immunity after shooting, without warning, an unarmed 15-year-old boy who was on his way to school, because the boy's friend was holding a plastic airsoft gun replica. A sheriff's deputy in Coffee County, Georgia, received qualified immunity after shooting a 10-year-old boy while aiming at a nonthreatening dog. The list, unfortunately, goes on.

The courts' decisions in those cases mean that each appellant had no legal recourse to seek compensation for lost assets or medical bills.

As of Friday, 16 additional legislators had signed on to Amash's proposal. Not a single one of them is a Republican.

The dissonance is mind-boggling: The GOP claims to be the party of small government and freedom, and they now have the opportunity to squash a dangerous doctrine that has put deadly power in the hands of the state at the expense of the little guy.

Republicans rightly criticize public sector monopolies that inevitably hurt the people the government is supposed to serve. Take teachers unions, for instance, which the GOP has historically railed against for propping up teachers at the expense of students. They're not wrong: Unions wield enormous political power that can be weaponized to skirt responsibility and accountability.

But why, then, are they so slow to apply that very same logic to the institutions emboldening the police?

"In case after case, police unions have defended deadly misdeeds committed by law enforcement," writes Reason's Peter Suderman. Consider the case of Eric Garner, who died in 2014 after New York City Police Department (NYPD) officer Daniel Pantaleo placed him in a chokehold for selling loose cigarettes. "I can't breathe" were his last words, captured on video.

Pantaleo was fired after a police administrative judge ruled that he had violated official NYPD protocol. Although the officer broke those rules with fatal consequences, the union chose not to cast Pantaleo as an outlier—a cop who never should have been one—but instead chose to continue defending him.

As Suderman notes, "Patrick Lynch, the president of the Police Benevolent Association, Pantaleo's union, criticized the city for giving in to 'anti-police extremists' and warned that such decisions threatened the ability of city police to do their jobs," as if all officers need to reserve the right to use excessive, forbidden amounts of force.

That police unions have taken that road shouldn't be surprising. But it also reminds us why it's time for them to go, since they enable behavior that threatens the very people they are supposedly protecting and serving.

So, too, is the story with qualified immunity—a doctrine that has allowed a collection of rogue cops to throw civil rights to the wind without any fear of comeuppance. Shielding the police from accountability at all costs does not advance freedom. When it comes to qualified immunity, where are the Republicans?