Qualified Immunity

A Senate Republican Has Officially Come Out Against Qualified Immunity

The legal doctrine frequently allows police officers to violate your rights without fear of civil liability.

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Sen. Mike Braun (R–Ind.) on Tuesday unveiled a bill to curtail qualified immunity, the legal framework that allows public officials to skirt civil liability for violating your rights if those rights have not been carved out explicitly in a pre-existing court precedent.

Somewhat ironically, the Supreme Court created the doctrine in spite of a federal statute. Although Section 1983 of Title 42 of the U.S. Code allows you to sue state actors for civil rights violations, Pierson v. Ray (1967) introduced a "good faith" exception in such cases. In Harlow v. Fitzgerald (1982), the Supreme Court exchanged that "good faith" exemption for the "clearly established" standard, which says that state actors are entitled to qualified immunity if the conduct that they're being sued over did "not violate clearly established statutory or constitutional rights."

In practical terms, the "clearly established" threshold is nearly impossible to meet. And that has had deleterious effects on holding public officials, particularly police officers, accountable for conduct that would land most civilians in jail. Cops have been granted qualified immunity for shooting a 10-year-old and a 15-year-old, stealing $225,000, assaulting and arresting a man for standing outside of his house, and siccing a dog on a surrendered suspect, among other offenses—all because a near-identical scenario had not been outlined in previous case law.

"Without any direction from Congress, our judicial branch has unilaterally created and defined qualified immunity. It's time Congress does their job to establish a qualified immunity law that defends law enforcement, while protecting the rights of the people," Braun said in a statement. "To claim qualified immunity under the Reforming Qualified Immunity Act, a government employee such as a police officer would have to prove that there was a statute or court case in the relevant jurisdiction showing his or her conduct was authorized: a meaningful change that will help law enforcement and the citizens they protect."

Unlike the bill introduced by Rep. Justin Amash (L–Mich.), Braun's proposed legislation does not end qualified immunity, though it does come close. The senator provides exceptions for those whose conduct was expressly permitted under federal regulation, federal statutes, and state statutes, and for those whose conduct was expressly permitted under relevant case law. It also requires that they show they were acting in good faith.

In other words, it essentially turns the Supreme Court's logic on qualified immunity upside-down. The bill excuses alleged misconduct when the courts have previously weighed in on the rights violation in question. Current qualified immunity doctrine basically excuses bad behavior when the judiciary has not rendered a similar decision—a grueling hurdle for any would-be plaintiff.

"Senator Braun's compromise proposal preserves immunity in those relatively rare—but more sympathetic—cases in which defendants are specifically acting in accordance with clearly established law," writes Jay Schweikert, a policy analyst at the Cato Institute, "but it would still have a major effect on run‐​of‐​the‐​mill civil rights claims, which are typically fact and context‐​specific and would not fall within one of these 'safe harbor' provisions."

The bill would reform qualified immunity for all public officials—not just cops. In that vein, it goes farther than House Democrats' proposed legislation, which only eliminates the protections for law enforcement. Braun's bill also includes a provision that would hold municipal governments accountable directly when their civil servants are found to have violated someone's rights. It's not unheard of for plaintiffs to sue the city concurrently when filing against a public official, but those claims are sometimes even more difficult to justify in court. Schweikert notes that this portion carries "pretty major financial implications" and may be a dealbreaker.

Even so, up until quite recently, qualified immunity has been a tough sell for Republicans, who distanced themselves from the reform after President Donald Trump made clear that he would veto such legislation. Sen. Tim Scott (R–S.C.) said eliminating qualified immunity would be a "poison pill." Attorney General William Barr claimed it would result in police "pulling back." White House press secretary Kayleigh McEnany called it a "non-starter."

But the tide seems to be turning, with some GOP senators expressing a tepid willingness to consider changes. Though Braun is the first to come forward with an official proposal, Sen. Lindsey Graham (R–S.C.) has expressed a desire to look further. "One thing I can tell you: If you're subject to being sued, you act differently than if you're not," Graham said in a Senate hearing last Tuesday. "Let's take a look at it."

That the GOP has been hesitant to back such reforms isn't surprising from a strategic perspective, but it's ironic when considering the party's ostensible principles. Republicans condemn judicial activism, yet qualified immunity epitomizes legislating from the bench. But more so, conservatives rally around the idea that abusive government institutions must be checked to protect the public's freedom. They would be right, and they can start with reforming qualified immunity.

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  1. Why don’t we just disband the police and avoid all police officer related crimes?

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    1. But where does Rand stand?

      1. Six feet away?

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      2. I’m waiting for Bill Weld to weigh in. He was by far Trump’s most viable challenger in the primaries and would be our next president if not for the RNC’s dirty tricks.

  2. …conservatives rally around the idea that abusive government institutions must be checked to protect the public’s freedom.

    That was never meant to mean we shouldn’t support our troops in blue!

    1. Conservatives will rally around Trump when he talks about law and order and keeping their fellow Americans safe, all up until they have to abide with law and order to help protect their fellow Americans by wearing a mask! Just walk through any so called “communist” business like Walmart and you’ll see their patriotic tendencies go right out the window!

      1. You have a very skewed idea of what patriotism means.

        1. It was still a valid criticism about the hypocrisy of conservatives, even if you nitpick the wording.

            1. Yes, it is. Nyeah nyeah nyeah.

  3. Why is it only the police who should lose qualified immunity? They certainly should, but what about other government employees? Imagine the losses businesses in the CHOP (formerly known as CHAZ – like Prince) in Seattle will suffer if the mayor continues with her ‘summer of love.’

    1. I don’t know if you can remove QI just from the cops. It’s a blanket legal protection. I’m guessing either it all goes away, or this whole moment will be a lot of sound and fury, signifying nothing when we move on to the next twitter outrage.

    2. Yes, same thought.

      The bill would reform qualified immunity for all public officials—not just cops.

      But no mention of prosecutors and judges. Especially those warrant rubber stampers.

      Still is actually would be a good start.

      1. Agreed, but also why I submit that it won’t happen. If it was just some magical thing that applied to cops, the political momentum is there to get rid of it. But when the reality sets in– that it applies to all public officials (at the state/local level as I understand) I’m guessing everyone in the chattering classes is going to get real wobbly on it.

        1. Easy, just say that only police don’t have it because reasons. You’re assuming it has to make sense, as opposed to it just needs to mollify the plebes that work was done and things were accomplished.

    3. Divide and conquer strategy? Once all the teachers realize that cops won’t be on their side they’ll regret all their virtue signaling.

    4. Did you bother to read the article? See the fourth paragraph from the bottom.

      1. I think we all read that, and thus the argument. It’s not “this is no good because it only affects police”, it’s “good job, it doesn’t follow the tasty trend of only affecting police.”

    5. I’m a (state) government employee, and I agree with you that this shouldn’t just apply to police. I would be quite happy to lose Qualified Immunity.

      I have never violated a citizen’s constitutional rights in the course of my work, and I don’t intend to. And I think that government employees who do, should not have this specially-created doctrine that provides much more protection than regular citizens get.

      1. Yeah, and the thing is that it was supposed to only protect you when it wasn’t you who made the judgement call but somebody above you–and I would honestly go with QI only meaning that you are taking the wrong person to court. And it might be reasonable to actually set up the process as determining who is the ‘right person’ is. You don’t want rid the cops who are executing the bad warrant, you want rid the idiot prosecutor who keeps asking for them and/or Judge Rubber Stamp Happy–unless you just really want to screw everybody over instead of actually fixing the problem.

    6. Yes, Why? I’ll be interested to see if the Democrats will support a general reform of qualified immunity for all government functionaries rather than just for local cops. My guess is that the Dems won’t, but will find some other ostensible grounds for opposing Braun’s bill.

    1. CHAZ? I mean Chastity?

  4. Get rid of qi. I can’t wait for the first CPS kidnapper to get completely reemed in civil court

    1. Without qi there is no life.

  5. What about the complete immunity that prosecutors and judges enjoy?

    1. Indeed. Their crimes are not as likely to be caught on video, however.

      1. Wearing a body cam over a judicial is more challenging than you might think.

      1. I think they really need to happen at the same time. If a judge signs off on a warrant that’s not really warranted, that could be a defense for any nonsense committed by police executing that warrant. Maybe not? Just my initial thought.

  6. The bill excuses alleged misconduct only when the courts have previously weighed in on the rights violation in question.

    Presumably ‘weighed in’ means the courts have deemed the alleged misconduct to be allowable.

    1. Yes, and that is the exact opposite of now, where it’s only bad if the courts have so ruled in cases so similar that that only recur once in a blue (ha ha ) moon.

    2. That provision seems redundant to me: if there is positive precedent that the act in question is lawful, the defendant is likely to prevail in summary judgement anyway.

      1. There will probably be cases where a statute could be ruled unconstitutional, and thus following the statute is only nominally lawful, not actually lawful. The revised bill would protect the officer in that case because he was following the law as a reasonable person would understand it based on statute or precedent. But without that exception, he’d be liable for civil rights violations, because an unconstitutional law is no law at all.

        (ie, with the exception, expect to see the rare case where the officer is granted QI, but the statute or precedent is struck down as unconstitutional).

  7. This seems like a better bill than the house version and hopefully we can get Trump on board. My fear is that if Trump comes out in favor of it, Pelosi and Schumer will try and block it for purely political purposes (gasp they would never do that!).

    1. Yep. And then the bill will need to contain a bunch of liberal bullshit like giving money to the Kennedy Center and Planned Parenthood as a compromise. Or better yet BLM.

      Or don’t give in and the media will blame Republicans for their partisanship.

      1. If Trump vetoes their bill because of QI, I fully expect they’d throw it all in his lap. They are trying to win a Predidential election.

        1. I didn’t say shit about Trump vetoing anything retard. When was the last time a president actually vetoed a bill? Now, I’m pretty sure I saw your favorite toy go rolling into the road. You should go look for it.

  8. And yet, no word on civil asset forfeiture? Color me unimpressed with tiny baby steps. I guess maybe get the police to stop murdering people before stopping their outright theft of property. That’s fair.

    It does seem like maybe we have a problem when these are our priorities though. Stop the murder, then maybe stop the theft afterwards?

    I am incredibly curious to see what happens in a civil asset forfeiture case when the officers involved might be liable, but I’d bank on them getting a pass for ‘budget reasons’.

    1. I agree, but at least with asset forfeiture a lot more States and other jurisdictions have already been reforming it.

      1. If it’s that easy to just drop cases and have them mooted to avoid a SCOTUS ruling, that’s a problem too given that it’s a violation of the U.S. constitution on a widespread basis.

        It’s part of the Fed’s job to police that exact thing. State and muni don’t get to just rescind your right to a trial and you can’t convict property of anything.

  9. Braun is wasting his time, probably grandstanding.

    If qualified immunity ends in the near term, it will be terminated by Democrats who, after the election, enact legislation over the wailing of inconsequential, authoritarian Republicans.

    1. Or maybe he genuinely cares. It does happen every once in a while with politicians.

  10. Republicans condemn judicial activism, yet qualified immunity epitomizes legislating from the bench. contractors rochester mn

    1. And the bot AI takes another step forward.

  11. It’s truly amazing that with 100% support from the Democratic Party this issue wasn’t addressed during the 4 years when they controlled the presidency, house of representatives, and senate while Obama was serving as the executive. They must have forgotten about it because of white man Republican tricknology. If only we could just get a uniparty state free of those goddamn Republican obstructionists! Just imagine a whole country based on the same libertarian principles of justice, liberty and self-government found in the CHAZ/CHOP and BHAZ.

    1. Democrats controlled all three for less then two years. But I do agree that they should have fixed QI and other issues when they had the chance.

    2. I guess racism still exists, and that is Trump’s fault even though his direct predecessor, supposedly disadvantaged by being Black, won two terms as President of the United States.

      If America is a systemically racist nation, we sure have a fucking bizarre way of showing it.

      It would be like if China suddenly put an Uyghur in charge of everything. Yeah they hate them enough to put them in concentration camps, sorry happy fun time camps, but that doesn’t mean they can’t run the country?

      Weird.

    3. They were intensely focused on using their advantage to do their thing to healthcare.

      1. Indeed, amusingly the Democrats spent literally all of their political capital on a program that did absolutely nothing whatsoever for their core constituencies.

        Premiums are higher than ever, but at least healthcare is way more complicated than ever before and wait times are up.

  12. Regardless of how difficult it is to take legal action against a state and state officials, the whole premise of immunity, qualified or non-qualified, is just one more way the federal government usurps more power via the doctrine of incorporation. The real question is what authority SCOTUS even has in the legal proceedings between a state and its citizens.

  13. Qualified immunity is basically “you ripped them off, but there was no case you were aware of that happened on their block in the last six months that determined that stealing from them was wrong.”

  14. How about we eliminate QI-like protections for all occupations. News journalist who mistakenly “ publishes false info – liable for all damages. A doctor whose mistake causes the death of a patient – charge with the murder. Anyone and all involved in the release of a criminal who thereafter kills someone – charge them with murder. Politicians whose legislation leads to a direct/indirect death – charge them with murder. No mistakes allowed in any profession. Everyone must be absolutely perfect 100 per cent of the time. Otherwise we will charge them with murder and burn and loot the nation. There, now we are all treated equal.

  15. thats the real face of trumph dipocracy

  16. Qualified immunity is basically “you ripped them off, but there was no case you were aware of that happened on their block in the last six months that determined that stealing from them was wrong.

  17. It does not have to be all or none. Some QI is necessary to keep the trial lawyers bar at bay. The problem would be much less if we changed the “you have to have a previous case” to a reasonable person standard and the jury decides, OR you have a case. We should call this the sh-t case.

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