Qualified Immunity

In June Some House Moderates Voted To Abolish Qualified Immunity for Cops. Now They're Not So Sure.

Strategic politicking, police union influence, or both?


A group of House moderates who voted last June to abolish qualified immunity for cops now want that provision to be modified or removed before Congress proceeds with a recently-revived police reform bill.

The legal doctrine requires that any alleged misconduct be "clearly established" in prior case law if a victim is to sue a public official in federal court. This has protected two cops who stole $225,000 while executing a search warrant, a cop who caused lasting damage to a subdued suspect's eye after allegedly kneeing him there "20 to 30 times," two cops who assaulted and arrested a man for the crime of standing outside his own home, a cop who shot a 10-year-old, a cop who shot a 15-year-old, and two cops who unleashed a police canine on a man who had surrendered. The Justice in Policing Act—which was originally unveiled in June 2020 after the police killing of George Floyd and was reintroduced on Wednesday—currently eliminates qualified immunity for law enforcement officers.

As reported by Politico, the antsy legislators are "between six and a dozen Democrats" in vulnerable re-election positions who have "privately argued that passing a partisan bill tanks any real chance at constructive talks with Republicans down the road." That moderate group also includes Rep. Fred Upton (R–Mich.) and Rep. Brian Fitzpatrick (R–Penn.), the only two sitting GOP congresspeople who voted in support of the bill last June.

The qualified immunity provision will probably be a tough sell for Senate Republicans. Although Democrats control the 50–50 chamber with Vice President Kamala Harris available to break a tie, they will need 60 votes to overcome the legislative filibuster.

But the struggle goes beyond strategic politicking and also reflects a balancing act: support for police reform chafes against support from police unions. Many Democrats who have urged reform still hope to maintain donations and public approval from law enforcement groups.

Josh Gottheimer (D–N.J.) is one of those congressmen. Not long ago, he bragged about receiving a perfect score from the National Association of Police Organizations (NAPO), a coalition of police unions and other related groups. "I will always get the backs of Jersey's law enforcement, just as they get ours," he wrote in a May 2020 press release. Though he voted for the Justice in Policing bill in June, he is now leading talks that he hopes will water down the qualified immunity provision.

Rep. Tom O'Halleran (D–Ariz.), a former homicide detective, is in a similar position. "I spent a lot of time out there, and it's a dangerous environment," he told Politico. "And I don't want an officer's family overly worried. But I also want a mother and father to know that their children are safe on the streets." He, too, received a 100 percent rating from NAPO. By contrast, former Rep. Justin Amash (L–Mich.), who introduced a separate bill to eradicate qualified immunity for all government officials, received a 31 percent rating.

Neither Gottheimer nor O'Halleran responded to requests for comment.

President Joe Biden is also deeply familiar with the tug-of-war at play. For much of his political career, he maintained a close relationship with the law enforcement lobby—a friendship that only recently soured as he's sought to trade in his tough-on-crime past for a more reform-friendly approach. During his run for the Oval Office, Biden's campaign said he did not want to abolish qualified immunity but that he supported reining it in, although he did not provide specifics.

Rep. Karen Bass (D-Calif.), the chief sponsor of the Justice in Policing Act, is reportedly open to modifications after the measure moves to the Senate, but she insists that the discussions should begin with the bill as it's currently drafted.

"Supporters of the status quo and most prominently the law enforcement lobby have been pretty effective at spreading misinformation about what qualified immunity is so that some people associate it with 'defund the police,'" says Jay Schweikert, a policy analyst with the Cato Institute's Project on Criminal Justice. "Some people think that it's, you know, just protecting really good cops acting reasonably, which, of course, is not what it's doing."

Apart from the Justice in Policing Act, Congress saw two bills introduced last year that would have addressed qualified immunity: Amash's legislation, and a bill introduced by Sen. Mike Braun (R–Ind.) that would have hamstrung the doctrine significantly.

The Amash bill eventually made its way to the legislative graveyard that defines Congress, and Braun stepped back from his proposal after receiving backlash from Fox News host Tucker Carlson, who misrepresented the doctrine in just about every way possible.

Even still, Schweikert is optimistic that such an approach is still possible in the future. "There's a question about whether this would be complete elimination of qualified immunity or an elimination with certain safe harbors, whether it's going to be limited to law enforcement, law enforcement and correction officers, or everyone," he says. "But without addressing qualified immunity meaningfully in some way, I don't think this will move forward."

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  1. Does the vaccine provide qualified immunity?

    1. Only for 6-9 months.

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    2. The Justice in Policing Act effectively mandates racial and gender quotas for police stops. Men speed more, but stopping more men than women would be considered evidence of discrimination under it. Asians speed less than whites, but stopping Asians less would be considered racism.

      It's odd that the qualified immunity provisions are attracting scrutiny, when the only sensible thing about the bill is its getting rid of qualified immunity (which should be abolished across the board, not just for cops, the way the bill does).

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    3. Only if you continue to double mask.

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  2. What was different back in June?

    Ah, yes, the mostly-peacefuls were on the rampage, and the Senate was Republican.

    So the Democrats in the House had a free vote, approving stuff they knew wouldn't be passed while hoping the mostly-peacefuls would be too dumb to know they were being played.

    Now the Dems supposedly hold Congress and the Presidency and have to worry that bills passing one house might pass the other and get signed by Biden. So they're naturally drawing back from the "extreme" positions they held last year.

    1. No different from all the GOP votes to repeal the ACA while Obama was still president. Easy to virtue signal when its nothing but talk and posturing, when it becomes action most will balk

      1. McKain alone was 2-faced.

        1. +6 more

  3. No QI
    No union
    No records secrecy

    1. No unicorns

    2. Sounds great. Now, apply that to the teachers and the useless government workers and we are on our way to healing the nation.

  4. "privately argued that passing a partisan bill tanks any real chance at constructive talks with Republicans down the road."

    "But, enough about the Affordable Care Act."

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  5. Because qualified immunity is not a boolean. It isnt yes or no. It is required to some degree. Look at recent changes to USSC precedent. If a government employee was refusing marriage licenses to same sex couples a decade ago, they would now be liable for discrimination based on the constitutionality change granted by the USSC just a few years back. There needs to be some QI, just the line needs to be moved further away from being able to plead ignorance on obvious questions.

    People who scream no QI ever are quite frankly simpletons who don't think past the first order optics of their bumper stickers.

    1. Exactly. QI for actions "clearly established" in police protocols. That should be tight enough.

    2. That's why I think the better way to approach this would be judicially. It was federal judges who created QI incrementally in their interpretation of existing statute, so I think it'll have to be federal judges who get back to a more reasonable interpretation of the law.

      1. The problem is the courts have been moving in the opposite direction of a reasonable interpretation for years, particularly since SCOTUS started allowing cases to be dismissed without a ruling. Overcoming QI requires precedent, but courts routinely grant QI and dismiss the case without setting a precedent for the next time

        1. So we need to find out what is impelling judges to move in that direction. What incentives are they responding to, and how can those be reversed?

    3. If QI is so necessary, how did the government function before 1982?

      1. People didn't sue the government for the smallest slights dumbfuck. The fact that you think there was no immunity prior to 1982 proves your ignorance. They just went to create judicial definition at that time. Or are you of the belief that no suit prior to 1982 was ever dismissed?

        1. As usual you responded to things I never said while hurling insults like a child. Try pretending to be an adult sometime.

      2. By the way. May want to read up on sovereign immunity abd its applications prior to 1982 before saying something stupid again.

    4. Nope. If the government official thinks their marginal behavior was justified, let them make the argument in court. The evil of qualified immunity is not merely that wrongdoers get off free but that the victims don't even get their day in court to make their case.

      You and I get no deference from police, the IRS or any other arm of government when laws and precedents change. Abolish the double-standard. Some issues are complicated and require thinking beyond first-order effects. QI is not one of them.

      1. A government employee follows the edicts of the executive abd the laws passed by the legislature outside of every case but the most egregious.

        You are asking every employee be granted individualized power to overrule both on a whim.

        Not shocked the simpletons are treating this as a binary choice.

        1. So you're saying we should bring back the Nuremberg defense. Talk about a simpleton's approach. Not only does every employee have a right to overrule illegal orders, they have a legal and ethical obligation to do so.

          Note, however, that "my employer told me to do it" would still be an allowable defense in my approach. I just think you should be required to make that argument to a jury and not be granted a free pass at the summary judgement phase.

  6. Does the inclusion of other government officials net more votes or fewer for such a reform?

    Is it possible to craft safe harbors in legislation that allow suits to go forward in cases different from those that are about the situations for which qualified immunity was originally intended?

  7. As reported by Politico, the antsy legislators are "between six and a dozen Democrats"

    So; not moderate at all?

  8. Reason: against qualified immunity for working class cops; in favor of blanket immunity for multi-billion-dollar Big Tech. This is really why I became a libertarian.

  9. moderate lol

  10. If politicians vote To Abolish Qualified Immunity they will find that to get good police officers it will cost them much more in salaries. Or they will have to lower their standard for police officers. So here is an suggestion that these politicians may want to try instead. Do a better background check on each officer. If an officer is called upon the carpet for some offence consider dismissing that officer. I noticed that many of the officers that were involved in the death of a defendant has several disciplinary actions on their record yet the continued on the force.
    I also noticed that many of the officers that were involved with death of a defendant were white officers. So if white officers are the cause why not hire more minority officers since they are not offending in this manor.
    I also noticed that there were a few death of a black defendant at the hands of a black officer but I don't remember any on them being charged with a racial civil rights offense even when the defendant was white or maybe another kind of minority.
    So it appears it is the white officers that are the problem maybe these white officers could always be paired with a senior black officer who would in charge. But I think that it would be better to replace the white officers with black or other minorities instead until there are no longer any white officers left.

    1. The police really need more Mohammed Noors.

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  12. A solution for qualified immunity for both the government that hires the police officer and for the officer themselves would be for the government agency would have to prove that the officer was out side the limits of what is allowed. The officer to get qualified immunity would have to be able to prove that the operation WAS within the limits set by the governing agency. The best way to prove that would be that each officer have a working camera and sound recorder on person to prove it was. And the government would have the right to deny the claim if the officer did not have a viable video/audio recorder on person. Without qualified immunity it will be very hard for any police department to have good, qualified officers at a reasonable wage and benefit rate.

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