Joe Biden

If Biden Is Serious About Criminal Justice Reform, He Needs To Get Serious About Qualified Immunity

The doctrine shields state actors from accountability.

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"We have all seen the knee of justice on the neck of black Americans. Now is the opportunity to make real progress," said President Joe Biden on Wednesday, addressing the nation after his first 100 days in the Oval Office. "My fellow Americans, we have to come together to rebuild trust between law enforcement and the people they serve."

That conversation returned to the forefront following the guilty verdict of Derek Chauvin, the former Minneapolis police officer now convicted of murdering George Floyd. In that vein, the federal government has arguably never been this close to passing major police reform that would unravel some of the tough-on-crime policies popular a mere two decades ago, and long championed by Biden.

"We need to work together to find a consensus but let us get it done next month by the first anniversary of George Floyd's death," said Biden, in a speech heavy on platitudes and light on policy specifics. And there is a particular policy debate that could throw a wrench in his timeline: qualified immunity, the legal doctrine that makes it unreasonably difficult to file a lawsuit against a state actor accused of misconduct.

Conjured out of thin air by the high court, it requires that any misconduct alleged against a government official be "clearly established" in a pre-existing court precedent in order for a victim to secure permission to simply make their case before a jury. Qualified immunity has protected two cops who allegedly stole $225,000 during a search warrant, a cop who shot a teenage boy on his way to school, two cops who arrested and assaulted a man for standing outside of his own house, a cop who decimated a man's car during a bogus drug search, and a college administrator who flouted a student's free speech rights, among others.

Unfortunately, qualified immunity became the flashpoint in the discussion surrounding criminal justice reform last summer. Republicans were unwilling to pass any reform that scaled back qualified immunity, and Democrats wouldn't vote for a bill unless it did.

As the Senate reconsiders the George Floyd Justice in Policing Act, which Biden would likely sign, that GOP reluctance appears to be softening. Tim Scott (R–S.C.) offered a compromise this month that would curtail qualified immunity for law enforcement officers if the departments themselves, rather than the offending officers, are held liable.

It's unclear if the reform will pass, as Democrats will need to overcome the filibuster and court support from at least 10 Republicans. They will also need to address skepticism from those in their coalition on this issue, some of whom say the compromise isn't really a compromise at all.

"Republicans pride themselves as the party of individual responsibility and personal accountability," says Clark Neily, senior vice president for criminal justice at the Cato Institute. "A policy that would prevent police officers from being held liable for their own misconduct—and leave taxpayers to pick up the tab—is the very antithesis of those values. Everyone should be responsible for the harms they inflict on others, whether or not they wear a badge."

Biden talked a big game Wednesday evening, rebuking what he cast as white supremacist terrorism. On the campaign trail, however, he was measured on this topic, expressing in meetings that he wasn't yet ready to end qualified immunity outright. But to get serious on criminal justice reform will require him to get serious on qualified immunity.

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  1. SleepyJoe isn’t serious about anything.

    1. Much less criminal justice reform. He’s been locking those people up for decades!

    2. He was serious about liberating and dismantling Orange Hitler’s concentration camps, which he accomplished immediately upon taking office.

      #DemocratsDontCageKids

  2. QI wouldn’t be a big deal if DAs would charge the cops with a crime!

    1. While theoretically true, in practice there are far too many disincentives for that to ever be a realistic control in any but the most extreme cases. Prosecutors depend on police in order to do their own jobs. A prosecutor who doesn’t maintain good relations with the cops in the area will not be a prosecutor for long. The two branches are too dependent on each other to be a viable check and balance.

      That’s why in the few cases where prosecutors do charge police, it’s almost always by a different jurisdiction (such as the feds investigating local corruption). We do need someone watching the police but realistically it can’t be the local prosecutors.

  3. I thought the “knee of justice” was proven to be on the back. Not the neck. Guess this is one of those truths that are incongruent with facts.

  4. Cops face more danger in a day then most people face in a decade. They deserve special protection including qualified immunity. The solution to police abuse isn’t to end QI but to ratchet down the wars on drugs and guns and gradually reduce funding for law enforcement. We’re all grown up now and don’t need to be patrolled and controlled as much.

    The victims of QI are not libertarians. We will not benefit from ending it. In fact, ending QI will degrade the quality of policing and increase the cost and that will hurt us. We have better causes to pursue.

    1. I’m an architect and I have a higher chance of being injured or killed on the job on any given day than your typical cop. So do people (almost always men) in about 20 other occupations.

      1. Cops have to deal with a lot of nonsense every day. They are mostly good and they are well trained and professional. It makes no sense to me why you would antagonize the people who protect you. You want to hire the best qualified and that requires offering special benefits. If you don’t like them then the solution is to decriminalize and slowly reduce funding. Your resentment just seems like delayed adolescent rebellion.

        1. It’s literally impossible for the cops to protect you because they can only get involved AFTER a crime has occured.

    2. And we all know cops were not able to do their job be for the mid 80s

    3. Your starting premise is false. Police work is not even in the top 25 most deadly jobs – and that’s before you control for the fact that more cops are killed by traffic than all other causes combined. (Hint – if you really want to protect cops, stop making them wear black, dark blue or brown uniforms on rainy nights standing on the highway side of a traffic stop. I don’t think much of the European approach to policing but at least they know enough to put their cops in bright colors.)

      That’s not to say that we shouldn’t end the dysfunctional war on drugs and ratchet down the attacks on other victimless crimes. But QI is not in any way necessary to defend police. Remember that QI is a recent invention. We went almost 200 years without it. Eliminating QI will bankrupt some bad cops – but that’s the point. Overall, eliminating QI will improve the quality of policing.

  5. “Biden talked a big game Wednesday evening, rebuking what he cast as white supremacist terrorism.”

    Which begs the question – why do so many cities with Democratic administrations hire purportedly white supremacist cops?

  6. If Biden was/Is Serious About Criminal Justice Reform, he would:
    – remove cannabis as a Class 1 drug,
    – urge Congress to enact Sen. Tim Scott’s police reform bill (that all Dems voted against last year just because they hate Republicans),
    – apologize for enacting, and urge Congress to repeal, ALL of Biden’s War on Drug laws, whose enforcement, prosecutions and sentences have unfairly targeted/burdened racial minorities,
    – praise Trump for his criminal justice reform measures,
    – stop playing the race card, and stop lying about America being systemically racist, as its the Democrat Party (not the GOP that ended slavery, Jim Crow and KKK violence) that has relied upon racism for and throughout its entire existence,
    – inform youth and young adults that resisting arrest almost never ends well (for those who resist arrest, which is also a crime, and
    – urge everyone who desires children to finish school, get a job, and get married (before having a child), promote fatherhood and and encourage fathers of fatherless children to get involved in fathering their child/children.

    1. Notice how Biden took credit for dozens of Trump’s accomplishments (especially Trump’s covid vaccines) without ever mentioning (or crediting) Trump, and falsely claimed that he (Biden) had rescued Democracy from violent insurrectionists (on Jan 6) and others who were/are intent on destroying Democracy.

      Joe’s a terrible liar, but once again the lying left wing Democrat and media propagandists (who lied about Trump for 5 years, and still haven’t admitted doing so) continue praising the Big Guy, his lies and his disastrous policies.

      Meanwhile, the Chinese, Iranians, Putin and other world leaders cannot stop laughing (behind closed doors) at Biden’s stupidity (and their gain).

  7. JB isn’t serious about anything.

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