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.