Congressional Democrats Waffle on Qualified Immunity

Cops say they can't function without qualified immunity, while their supporters on the right say abolishing it would be a step toward defunding the police. Neither claim is true.


Conjured into existence decades ago by the Supreme Court, qualified immunity shields government employees from federal civil rights claims unless their alleged misconduct has been ruled unconstitutional in a previous case. Last June, House Democrats appeared to side with activists who argued the doctrine needed to go when they voted unanimously for the Justice in Policing Act, which would have abolished qualified immunity for law enforcement officials. Now that they're in charge, some of those same Democrats are waffling.

"This issue is far too important to just have a messaging bill," Rep. Josh Gottheimer (D–N.J.) told Politico in February. "We need this to get to the president's desk."

There is some merit to Gottheimer's argument. With the GOP in control of the Senate, his vote last summer didn't matter. Now that Democrats run the show, they will still need support from at least 10 Republican senators to overcome the filibuster.

Cops say they can't function without qualified immunity, while their supporters on the right say abolishing it would be a step toward defunding the police. Neither claim is true.

Qualified immunity indiscriminately shields both well-meaning cops and bullies with badges, such as the two Fresno, California, officers who allegedly stole $225,000 while executing a search warrant. When their victims tried to sue in federal court, a judge said they couldn't, because there was no precedent with closely similar facts.

"My bottom-line conclusion is that we should eliminate qualified immunity," says Joanna C. Schwartz, a law professor at the University of California, Los Angeles. "But I also think that it's not an all-or-nothing proposition."

Schwartz says the doctrine could be reformed so that state actors would lose the protection if they "clearly violated the law." Or defendants could be required to cite a training module or relevant court case that expressly permitted their conduct.

Her second suggestion might sound familiar. Sen. Mike Braun (R–Ind.) introduced a similar proposal to rein in qualified immunity last summer, but he withdrew it after Fox News host Tucker Carlson dedicated several segments to railing against the effort.

Considering the GOP's reluctance to get tough on criminal cops, Gottheimer and other would-be reformers should be looking to build bridges, not negotiating against themselves.

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  1. I don’t see why cops are opposed to doing away with QI, if you’ve done nothing wrong you have nothing to fear, right?

    1. Let’s get rid of it for all government employees. I know of one who would be in jail now, but not for shooting someone.

      1. Qualified immunity is irrelevant in a criminal context, so, no, there are zero politicians who would be in jail if it wasn’t for qualified immunity.

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    1. When Lord Indra arrived on the Ganges in his chariot to slaughter 6 million bureaucrats with qualified immunity, the first word he said was “namaste.”

  3. I am very curious to know the reason for the opposition of the police

    And I also think there’s no need to be afraid, is it

  4. Don’t worry. Democrats might pretend otherwise, but they eventually do what their billionaire base wants. And billionaires like Reason.com’s benefactor Charles Koch want to abolish racist “tough on crime” policies so we can #EmptyThePrisons.

    1. They have to empty the prisons, so they can fill them with their ideological opponents.

  5. It’s like we live in some bizarre parody of reality where qualified immunity and civil asset forfeiture are the law and people actually believe they’re proper and valuable tools of go ernwmbt rather than the tools of oppression they actually are.

    1. Most people believe that asses forfeiture is only used on drug dealers, and calls for QI reform are purely racial. So they brush it off.

      1. Most people don’t think about it. They live in bubbles.

      2. The tragedy of BLM is that it turned police reform into a racial issue when it’s a class issue. Cops love to fuck with poor people, regardless of race, because they can’t afford to fight back in court. Framing it as cops being racist distracts from the real problems.

        1. I can’t believe I’m going to say this, but sarcasmic is dead on. BLM set back police reform decades.

          1. Stick your backhanded-compliment up your ass.

        2. “The tragedy of BLM is that it turned police reform into a racial issue when it’s a class issue.”

          You have this right. The policing problem is not a problem of racism, but of statism; and it is a class issue, but the classes are not the rich versus poor, of government versus private. With money, leisure, and power those of the Government Class are looking very like the old aristocracy, and we private citizens their serfs.

          1. It’s not who you blow it’s who you know.

        3. Class profiling is accurate and useful, and when you add the way people present themselves I’d say we could identify criminals with 90% accuracy. Which is to say that it is very easy to take a look at someone and figure out if they are a drug user. Drug users are likely to be associated with drug dealers. Dealers are likely associated with people participating in some other victimless crimes. This smaller subset is more likely to be involved in the businesses (gangs) that popped in response to vices being prohibited.

          Its unfortunate and unfair to all of the poor people that are honest and law abiding, but life is rarely fair. As long as police as a block hold the political power they do, this country will never have a reason to fix the situation.

          BLM definitely screwed the pooch making it about race and defending some of the biggest scumbags in the country.

          1. Useful if we accept the premise that we as a society dont want drugs, gambling, prostitution, maybe etc. legal.

      3. Most people haven’t heard of asset forfeiture or qualified immunity.

        I used to look down on the average person for things like that. Then I realized it is normal to be focused on your own life. We wonks that hang out in the Reason commentariat are the oddballs.

        1. Not all oddballs are libertarians, but all libertarians are oddballs.

    2. “go ernwmbt?”

      Reads like one of those cryptic personalized license plates on the car in front of you, and you cannot help but try to decipher it.

      And of course you don’t

  6. If you haven’t done anything wrong, you have nothing to be concerned about.

  7. The GOP will fight any and all police reforms simply because those ideas originated from the political opposition. It’s petty and childish, but not at all surprising.

    1. The [political party] will fight any and all police reforms simply because those ideas originated from the political opposition.

    2. And all those sweet police union endorsements.

      The Democrat’s equivalent are teachers union endorsements, of course.

      1. Police unions spend 60% of their political contributions on team d

    3. So those police reforms will sail right through in the D-controlled big cities, right?

      Funny how we’re seeing pretty much the exact opposite. Kowtowing to the police lobby is bi-partisan.

  8. Schwartz’s suggestion that qualified immunity can be removed if the LEOs clearly violated the law seems to be what we have now, except the judiciary are reluctant to determine that LEOs have clearly violated the law except in the most egregious cases. Law does not work very well without black and white instructions, giving the judiciary too much discretion to prejudge what the trial is supposed to determine will mean that they generally will punt.

  9. I would attack the judicial opinions. I would write a law to undo the analysis so that judges couldn’t weasel their way out. They should filp all the burdens so the cops had show they were innocent little angels. It’s no necessarily qualified immunity that’s rotten it’s the way the judges have structured the analysis.

    1. They should filp all the burdens

      I see somebody hasn’t read the Constitution.

      1. “I see somebody hasn’t read the Constitution.”

        That somebody is you if you think that QI is in it or if you think that the BoR protects the government against we citizens versus we citizens against the government. We citizens can Constitutionally place (“flip”) any burdens that we chose to on the government.

        “There is one thing in the world more wicked than the desire to command, and that is the will to obey.” ~ William Kingdon Clifford

        1. Then you should know that our justice system isn’t built on affirmative defense (or “flipping the burdens”, as it were).

          1. That’s absolutely true. However, you should know that the burden of proof isn’t specified explicitly in the constitution. Maybe you didn’t read it….

            1. …nor shall be compelled in any criminal case to be a witness against himself…

              1. QI doesn’t apply in a criminal case. QI is relevant only when you’re trying to sue a cop in civil court.

          2. That’s by custom not by the Constitution. Even if it were there is no explicit extension of the BoR protections to the government. Indeed, at the time there were explicit discussions that they did not, and we have the military’s UCMJ as long standing precedent that government can be held to any separate system or standard of justice that it is decided to be a needed precaution against current or potential government abuses.

            It would be constitutional to require affirmative defenses by police in administrative, civil, and / or criminal proceedings. It would be constitutional, also, to execute police, if maybe slightly excessive, for misdemeanors. Given the current state of policing we probably should require affirmative defenses from them and enact and enforce the harshest possible penalties in both administrative and civil proceedings, watching closely to see if extending such to criminal ones is needed to get their excesses under control.

      2. Actually one can read the whole thing and not find even the which side has the burden of proof, much less at what level. It’s only implied through terms like “due process” and an understanding of what is/was commonly accepted as due.

  10. Next you’re going to tell me they don’t really want to end the war on drugs, either!

  11. Politicians, no matter the letter after their name, will have to be forced into any meaningful police reform. The police are the politicians’ grasping fingers and stinking toes they cannot chase you down to grab you and your money and force you to comply with their whims without those police fingers and toes – they will not willingly restrict their function.


    “What we now have is a government of the people, by the bureaucrats, including the legislators who have become bureaucrats, for the bureaucrats.” ~ Milton Friedman

  12. “defendants could be required to cite a training module or relevant court case that expressly permitted their conduct”

    I have a great new idea for a training-module-producing consulting firm. The government tells me which parts of the constitution they want their employees to violate, and I draw up a training module explaining why it’s OK.

    My fees will be quite reasonable.

  13. “”My bottom-line conclusion is that we should eliminate qualified immunity,” says Joanna C. Schwartz, a law professor at the University of California, Los Angeles. “But I also think that it’s not an all-or-nothing proposition.”“

    Excuse me, but elimination IS an all or nothing proposition.

  14. If you do away with “qualified immunity”, no only are the Police effected, ALL government employees are effected. The Public Sector Unions that these employees belong to are not going to like that. Since they donate heavily to Democrats they are the 800 lb. gorilla in the room.

    It’s all about the money.

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