Qualified Immunity

Democratic Party Platform Calls for 'Reining In' Qualified Immunity. Why Not Eliminate It?

Stop pandering to Joe Biden and listen to Americans who want to stop shielding abusive officers from liability.


Despite all the summer protests calling for policing and criminal justice reforms, discussion of actual policy has been largely absent from the Democratic National Convention this week (misguided appearance by Houston Police Chief Art Acevedo notwithstanding).

The official 2020 Democratic Party platform spends several pages on criminal justice reform, and the discussion isn't bad. Among other things, it talks about holding police and reckless prosecutors responsible for misconduct:

We cannot create trust without holding those in power accountable for their actions. Democrats will reinvigorate pattern-or-practice investigations into police misconduct at the Department of Justice, and strengthen them through new subpoena powers and expanded oversight to address systemic misconduct by prosecutors. Far too often, the law has shielded police officers who stand accused of heinous violations of civil and human rights. Democrats support lowering the intent standard for federally prosecuting law enforcement officials for civil rights violations. We will also act to ensure that victims of federal, state, or local law enforcement abuses of power can seek justice through civil litigation by reining in the doctrine of qualified immunity.

The American people deserve access to timely and accurate data on activities supported by their tax dollars, including policing. We will collect and publish data on the use of force in police departments across the country to promote transparency and accountability. To increase transparency and improve federal, state, and local law enforcement hiring practices, Democrats will also establish a national registry of officers who have been found to have abused their power.

Only the promise to publish data on the use of force was in the party's 2016 platform. The rest of this is new.

Unfortunately, the reference to "reining in" qualified immunity is much too vague. Qualified immunity protects public officials from federal civil rights suits when they violate citizens' rights in their line of work, except when there are court precedents that show that the officials' violated "clearly established" law. Time and again, this has been used to shield abusive police officers, including a ruling this week that protected an officer who kneed a subdued suspect in the eye between 20 to 30 times.

Qualified immunity doesn't need to be "reined in." It needs to be eliminated. The weaker language appears to be something that presidential nominee Joe Biden insisted on over the objection of Bernie Sanders' crew, which sounds similar to the reason why full marijuana legalization is not part of the party platform.

Qualified immunity's defenders insist that it allows the police to do their jobs without having to worry that they'll be taken to court simply for having to use force against a suspect. But that just isn't what the doctrine does. It protects officers who have clearly acted illegally, giving an escape clause to people who can claim ignorance of the law. It's one set of rules for public officials and a different set of rules for the rest of us.

A majority of Americans oppose qualified immunity. And police unions are already starting to rally behind President Donald Trump and his support of unbridled police power (as long as it isn't directed toward him). There's no need to be deferential to Biden here. What would the Democrats actually lose by telling Americans they intend to hold police officers and other government officials to the same legal standards as the rest of us?