Qualified Immunity

Ayanna Pressley Revives Justin Amash's Bill To End Qualified Immunity

The Ending Qualified Immunity Act of 2021 would no longer let state actors violate your rights without consequence.

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Rep. Ayanna Pressley (D–Mass.) has reintroduced a bill to end qualified immunity, a legal doctrine that makes it difficult for the public to hold government officials accountable for alleged misconduct.

Former Rep. Justin Amash (L–Mich.) originally unveiled the Ending Qualified Immunity Act in June 2020 after the police killing of George Floyd. Pressley signed on as cosponsor a few days after, though the bill died without ever receiving a vote.

The Ending Qualified Immunity Act of 2021, which Sens. Ed Markey (D–Mass.) and Elizabeth Warren (D–Mass.) are cosponsoring in the Senate, endeavors to do the exact same thing as its predecessor: abolish qualified immunity for all state actors.

The American public maintains the right to sue civil servants who violate their rights under Section 1983 of Title 42 of the U.S. Code. But the Supreme Court has radically limited that right over the years. First, there was the decision in Pierson v. Ray (1967), which held that public officials may avoid civil suits if constitutional violations were made in "good faith." In Harlow v. Fitzgerald (1982), the high court took that a step further: Victims may not sue state actors for misbehavior unless that misbehavior was "clearly established" in previous case law.

In other words, in order to have the right to bring a case before a jury, a plaintiff must be able to point to a court precedent that explicitly describes the situation in question to a tee. Qualified immunity has protected two cops who stole $225,000 while executing a search warrant, a cop who damaged a man's eye after allegedly kneeing him 20 to 30 times after he had been subdued, a prison guard who hid while an inmate raped a nurse, two cops who beat and arrested a man for standing outside of his house, a cop who ruined a man's vehicle during a bogus drug search, a cop who shot a 10-year-old, and a cop who shot a 15-year-old.

In all of those cases, the victims were left with no avenue for recompense.

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

The Supreme Court has demurred at the opportunity to fundamentally reevaluate the doctrine. But it has started to send messages to the lower courts that the current application of qualified immunity no longer cuts it. In November, it overturned an appeals court decision that awarded qualified immunity to a group of correctional officers who forced a naked inmate into two deplorable cells, one teeming with sewage and the other with "massive amounts" of human feces. And just last month, it reversed another appeals court decision that gave qualified immunity to a prison guard who had pepper-sprayed an inmate without provocation.

Lawmakers are poised to vote soon on the Justice in Policing Act, a reform bill that would end qualified immunity for cops. Pressley's bill eliminates it for all public officials—a relevant tidbit, when considering that the last two SCOTUS decisions on the issue pertained to correctional officers, not police officers. Moderate Democrats have begun backing away from that provision, however, in some cases because they face tough re-election challenges and want support from police unions.

Meanwhile, the GOP has largely resisted such reforms. Sen. Mike Braun (R–Ind.) did introduce a bill last summer that would have effectively paralyzed qualified immunity, but he abandoned it after scuffling with Fox News host Tucker Carlson. Amash's bill only boasted one Republican cosponsor, Rep. Tom McClintock (R–Calif.).

But the American public is on board. The majority of the country supports reform, with high-profile attempts gaining steam. Citing Reason's reporting on the issue, players from the NFL, MLB, and NBA urged Congress to support Amash's bill last June.

One big hurdle at the time was then-President Donald Trump, who said that qualified immunity reform would merit an automatic veto. Will President Joe Biden, who has said that he isn't ready to end the doctrine, be any better? His national press secretary told me during the campaign that he wants to see it "severely reined in." He did not provide details as to what that meant.

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  1. Some detail is missing. If QI is thrown out, does it go back to the “good faith” standard? That would surely be abused and expanded back into QI in all but name.

    1. Let me clarify my skepticism. This quote:

      “It is the sense of the Congress that we must correct the erroneous interpretation” of Section 1983, the bill says, “and reiterate the standard found on the face of the statute, which does not limit liability on the basis of a defendant’s good faith beliefs or on the basis that the right was not ‘clearly established’ at the time of the violation.”

      seems to imply that no, it goes back to prior to the “good faith” nonsense. But how exactly does this prevent the Supreme Court or other courts from re-interpreting it the same way all over again under a different name or with different words? Will courts imply a “mens rea” they aren’t willing to see in other emanations and penumbras? I’d bet a paycheck the courts would find some way to suck up to prosecutors and police unions.

      1. When I read that quote I interpreted as if the legislative intent was too override both the 82 and 67 Supreme Court rulings, since it says that both good faith and lack of a clearly established law should no longer be viable defenses in court.

        As you say, other loopholes likely exist, so it may only be a temporary solution until innovative lawyers discover those new pathways.

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      2. I’d bet a paycheck the courts would find some way to suck up to prosecutors and police unions.

        And teacher’s unions and all public sector unions in general– all of whom benefit from Qualified Immunity.

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    2. Contrary to what the article above claims, “good faith” is no longer a defense to being sued, nor is it sufficient to obtain qualified immunity. Harlow v. Fitzgerald actually reined in, rather than expanded, qualified immunity. It said government officials are liable for violating “clearly established” constitutional rights, even if they acted in good faith — if they were nevertheless stupid enough to commit clear constitutional violations.

      Again, qualified immunity does not apply when a government official commits a violation of “clearly established” constitutional rights. That includes violations that are so uniquely outrageous that no prior court ruling could ever have dealt with “nearly identical” facts. Such violations are nevertheless deemed “clearly established” and grounds for denying qualified immunity. As the Supreme Court explained in United States v. Lanier (1997), “The easiest cases don’t even arise. There has never been…a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.’”

      Yet Reason often wrongly claims that qualified immunity applies unless a court has found that precisely the same facts violated the Constitution in a prior court ruling. The same facts aren’t required, only a blatant violation or fairly similar facts.

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  2. No police union support = deader than George Floyd in a Biden administration.

    1. Maybe he’ll accidentally sign it in a senior moment? Can’t hurt to try.

  3. How the @#$% did RuPaul get elected to Congress?

    1. Bravo slush funds

      1. Are you saying he’s just a pawn of Big Housewife?

        1. and Overlord Andy Cohen.

          the Dallas housewives are hilarious but I may be biased

    2. I thought that was a Wakandan version of Lex Luthor.

    3. Good for Ayanna Presley. Just saw that she has alopecia and is now bald from that and is owning it rather than covering it up. Maybe she needs to tone down the drag queen makeup. Or hell maybe them’s her peeps

      1. Maybe she just can’t find Gorilla Glue during Covid now that all the other bright gals are using it to secure a rug to their head.

    4. “How the @#$% did RuPaul get elected to Congress?”

      It remembers the fake eyelashes but cannot be bothered to wear a wig.

  4. The Ending Qualified Immunity Act of 2021 would no longer let state actors violate your rights without consequence.

    Can we please stop with this? QI does not shield state actors from “consequence”. It shields state actors from being directly sued for their actions on the job in civil court. Those two things are miles apart.

    Yes, almost everyone agrees that when the state apparatus of accountability and consequence fail, that being able to sue the actors directly could be a useful avenue to redress your grievances. But there are many… many layers of accountability already in place. Yes, those layers fail too often. Yes, there is valid argument for reform, including but not limited to Qualified Immunity as a doctrine. But please stop suggesting that Qualified immunity is the ONLY mechanism blocking consequence or accountability. It is a factually false statement.

    1. Been preachibg to these morons for years. Also, The problem is not QI, the problem is the Unqualified Immunity you get from the ridiculous interpretations of ” no settled case law”

      1. Yes, of course the victim could, in lieu of a lawsuit, petition the Mayor or police chief/warden/etc. to fire the responsible officer or bureaucrat. Or ask the DA to prosecute. But that presupposes the existence of a close election and maybe the threat of riots. And if they *do* decide to fire or punish a bureaucrat/cop/guard it won’t be the most egregious cases but only the cases which got the most tendentious publicity from the media and the rioters.

        Whereas a civil suit lets you put your case to “twelve good (wo)men and true,” i. e. a verdict of the people themselves, not politicians or top bureaucrats.

      2. The problem is not QI, the problem is the Unqualified Immunity you get from the ridiculous interpretations of ” no settled case law”

        I’m even prepared to say I understand where that came from. And I don’t have an answer as to how one would fix it. Run with me:

        Student in Mrs. Wickersham’s 2nd grade class comes home crying. Mother talks to her child, concludes the teacher was verbally abusive. [sound of needle scratching over vinyl]

        three months later, Mom sues Mrs. Wickersham personally over the verbal abuse of her child. Court throws out the suit under qualified immunity because there’s “no settled case law” to suggest that Wickersham’s sharp tone when telling the child to sit down and be quite is a violation of human rights.

        What I don’t understand is how we got to the place where an officer shooting an unarmed person in the face, or stealing from them while conducting a search on their property- isn’t a violation of settled case law.

        1. Even that first example doesn’t work. A judge can throw out a bad lawsuit for many reasons, they don’t need a nonsense doctrine that reduces your rights to enumerated precedents. From everyone else, you have a right to not be unduly harmed, and that should be the only question before the court.

    2. A suit is the only method of accountability that the victim has any control over. The rest are just the victim asking someone else to punish the officer (and those almost never happen).

      1. Incorrect, the victim can sue the agency for which the agent works.

        1. Maybe but generally not. The agency is only liable if the abuse as in accordance with the agency’s established practice and policy and may not be liable at all depending on which agency or subdivision of government you’re talking about.

    3. “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”

      ― H.L. Mencken

      Laws aimed at bad cops will be used by bad people as weapons against good cops.

  5. His national press secretary told me during the campaign that he wants to see it “severely reined in.” He did not provide details as to what that meant.

    Why? Doesn’t *he* have QI?

    1. The reason no one can say exactly what it means– even those who are nominally on the side of getting rid of it– is because they know damned good and well how complicated it’ll be with a wide range of constituencies.

      The idea behind qualified immunity is a noble one, the practice, however is terrible. No teacher wants to do their job while looking over their shoulder for an incoming lawsuit by every parent who felt slighted by an interaction with their child and said teacher.

      For the record, I think QI can be dealt with– or seriously curtailed, but because I know how politics works, whatever we’re left with will look remarkably similar with few (if any) public officials ever seeing the inside of a courtroom, let alone be on the hook for a single dime. And because QI reform doesn’t address accountability, that same official can lose all the lawsuits they can throw at him, and he’ll remain employed, in good standing with the agency for which he or she works.

  6. So…I presume these bills are either opening negotiating gambits in an attempt to get something from the public-sector unions, or else a sop to the base which is never meant to be passed in any circumstances. Or both.

  7. Doesn’t matter. It still gets down to a judge’s opinion and judges get paid with stolen money. Therefore, they are all corrupt.
    When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

    1. Dude, move to Iraq! You will love it!
      They don’t have any of that nonsense that you listed. Just government troops in funky uniforms and jails. The politicians point, and the military/police arrest and jail. Trial? Who has the time?
      The people form in tribes, everyone is armed to the teeth! Divorces are handled at home, with an AK. No paperwork, no lawyers, no court. Family/tribal disputes are sometimes handled by kidnapping family members and holding them for ransom, or in the street with the AKs and RPGs . For those that abhor marksmanship and ambush techniques, they can always send a heroin hopped up sheepherder in a car bomb that thinks he is headed for a celestial orgy with 72 virgins. FREEDOM!

      1. Talcum got brain cancer from Talcum powder to the point of it presenting false choices like moving to Iraq. Pity the fool and move on.

  8. Does it include legislators who pass bills that unconstitutionally violate people’s rights?

    I didn’t think so.

    1. You mean, like the never-ending ’emergencies’ declared by governors this last year….and stripped our 1A rights doing so?

  9. OT, but interesting: DeBlasio tosses Cuomo under the bus.

    “Mayor De Blasio Slams Gov. Cuomo Over Sexual Harassment, Nursing Home Scandals”
    https://www.youtube.com/watch?v=X6zcKM3z5es

    Date-stamp of the whine is perhaps not surprising…

  10. Aside from the fact that public opinion is irrelevant considering most Americans never even heard the word before and still don’t understand what it actually means, I take serious issue with the reporting on the matter, especially at Reason. Most of the stories have been outright lies that ironically prove the necessity of doctrine like QI. For instance, that supposed California robbery case where officers “stole” merchandise and didn’t know what they were doing was a crime. What they allegedly did was steal merchandise that was legitimately taken into possession by the state as evidence and the QI covers them from an unconstitutional seizure. The point of the issue was that if the officers did in fact steal merchandise from evidence, which is a crime, they could not have known that their theft would also be an unconstitutional seizure that lands them in civil court. Remember, if you hold the state liable for that, that’s the US taxpayer paying to convicted criminals because individual officers were stupid enough to steal on the job.

    This is of course assuming theft actually occurred. Nobody has ever bothered to report the facts, so I don’t think anyone ever figured out whether or not the officers actually stole anything.

    1. I just checked and Binion, you’re still linking to that very same disinformation article that you keep shilling. Again, assuming the alleged theft occurred, how would a police officer know that stealing puts them and the state on the hook for a 4A violation? It says no unreasonable searches or seizures. The actual search and seizure was legitimate; the theft after the fact was not. Are all thefts 4A violations now? I wouldn’t think so.

      Aren’t Libertarians opposed to hate-crime laws because existing laws already sufficiently punish individuals? Why is this any different?

  11. Why was the money taken? It obviously could not have been germane to the evidence in the case, could it? That would seem to violate the unreasonable seizure part.

    1. It was an illegal gambling operation and the warrant called for pretty much everything. Quoting from Cyto here:

      “Here, the City Officers obtained a warrant that
      authorized them “[t]o seize all monies . . . or things of value
      furnished or intended to be furnished by any person in
      connection to illegal gambling or money laundering that may
      be found on the premises.” Accordingly, the warrant
      permitted the City Officers to seize the money and rare coins
      that Appellants argue the City Officers stole from them.
      Under the reasoning of the Supreme Court and several
      circuits cited above, therefore, Appellants’ Fourth
      Amendment claim appears to fail. Because the City
      Officers’ initial seizure of Appellants’ property was lawful,
      and because a Fourth Amendment seizure is complete after
      the government has taken possession of the property,
      Appellants would not be able to state a Fourth Amendment
      claim against the City Officers for their theft of the property
      after its lawful seizure.”

      Effectively, the officers, again assuming they actually stole evidence, stole from the state as the state had every right to take possession of the evidence. It’s not even a 4A issue and has nothing to do with QI.

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