Qualified Immunity

Can Republicans Be Persuaded To Restrict Qualified Immunity?

Polling shows a sharp partisan divide on the issue, but it also suggests that compromise might be possible.

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Qualified immunity for cops accused of misconduct is the biggest point of disagreement between Democrats and Republicans in the congressional debate about police reform. While polling confirms a sharp partisan divide on the issue, a detailed University of Maryland survey conducted last year suggests there may be room for a solution that can pass the Senate as well as the House.

Under 42 USC 1983, state and local officials can be sued for violating people's constitutional or statutory rights under color of law. But in the 1982 case Harlow v. Fitzgerald, the U.S. Supreme Court held that such claims can proceed only when the alleged misconduct violated "clearly established" law, a doctrine that frequently lets police officers accused of outrageous behavior escape accountability by arguing that what they did was never specifically condemned in a prior judicial decision.

That obstacle is so formidable that it could have blocked a federal civil rights lawsuit against former Minneapolis police officer Derek Chauvin, even though he was convicted in April of manslaughter and murder for killing George Floyd. While the city reached a $27 million settlement with Floyd's relatives last March, it is not at all clear that they would have been able to locate relevant precedents specific enough to overcome Chauvin's claim of qualified immunity.

You might think that state of affairs would motivate bipartisan support for abolishing, or at least restricting, qualified immunity. But while such reform has strong support among Democrats, Republicans are much less inclined to favor it.

An April Vox/Data for Progress poll, for example, described qualified immunity as a doctrine that "makes it extremely difficult to sue government officials—including police—for actions that are unconstitutional or illegal that they performed in their official capacity." While 73 percent of Democrats, 59 percent of independents, and 59 percent of all respondents supported "ending the practice of 'qualified immunity,'" just 46 percent of Republicans did.

The overall results were similar in a July 2020 survey conducted by the Program for Public Consultation at the University of Maryland's School of Public Policy. It asked respondents what they thought about the qualified immunity provision of the George Floyd Justice in Policing Act, which the Democrat-controlled House approved in June 2020 and again in March 2021, both times with support from hardly any Republicans (three and one, respectively).

"The first part of a proposal currently being considered in Congress would no longer allow officers to be granted immunity solely on the basis that the officer says they were acting in good faith and believed their actions were lawful," the survey said. "The second part of [the] proposal would no longer allow officers to be granted immunity solely on the basis that there have not been previous cases in which other officers were held liable for the same conduct in very similar circumstances."

More than four-fifths of Democrats, along with more than three-fifths of independents and a similar share of all respondents, thought that reform was a good idea, while just two-fifths of Republicans agreed. But the survey also asked respondents to rate the proposal on a 0–10 scale, with 0 indicating that the change was "not at all acceptable," 10 indicating that it was "very acceptable," and 5 indicating that it was "just tolerable." Here the results were more encouraging for critics of qualified immunity, since 61 percent of Republicans thought abolishing the doctrine was at least "tolerable."

Respondents' evaluations of the arguments for and against ending qualified immunity for police officers also suggested that Republicans might be persuadable. Here was the argument in favor of the provision:

There have been an extraordinary number of cases in which officers have not been held accountable after using excessive violence against civilians, simply because the officer could say they didn't think they were violating the law or because there wasn't a previous case holding an officer liable under virtually the same circumstances. Not understanding the law should not be an excuse for violating it—especially for a police officer. No other person would ever be able to use that defense in court. Without any consequences, officers will continue to commit heinous acts against citizens. This is wrong, and it's causing people to lose faith in our system of justice.

Unsurprisingly, an overwhelming majority of Democrats—nearly 87 percent—deemed this argument "very" or "somewhat" convincing. But so did 57 percent of Republicans, which suggests that most of them were troubled by the fact that qualified immunity can leave victims of egregious police abuse with no recourse under 42 USC 1983.

At the same time, Republicans are much more worried than Democrats about the possibility that abolishing qualified immunity could have a chilling impact on policing and impose unfair burdens on conscientious cops. Here was the survey's argument against abolishing qualified immunity for cops:

Police officers often have to make split-second decisions in dangerous situations. Qualified immunity is necessary to give officers the ability to make reasonable, even if mistaken decisions without constantly worrying about getting sued. Without qualified immunity, police officers will become too timid and fail to take the appropriate action. They may use too much caution, and let a criminal get away, or worse, they may fail to use necessary force against a violent person that poses a risk to the officer or a bystander. When on the job, police officers should only have to consider how best to stop criminals and make their community safer, and not whether their actions will result in a long trial and bad publicity. Changing these laws will make our communities less safe and make it harder to recruit and retain good officers.

Just 28 percent of Democrats thought that argument was "convincing," compared to nearly three-quarters of Republicans. Critics of qualified immunity such as UCLA law professor Joanna Schwartz have argued that there is little basis for these concerns, mainly because the possibility of legal liability does not loom large in the minds of most police officers, a situation that is not likely to change much even without qualified immunity. While doing away with the doctrine can be expected to increase the number of civil rights cases, Schwartz thinks, the average cost of litigation would be lower, the profit motive still would deter lawyers from pursuing frivolous claims, and cops still would not have to worry about personal financial liability, since their employers almost always indemnify them.

The fears summarized in the University of Maryland survey nevertheless motivate Republican defenders of qualified immunity and are apt to frustrate any attempt at legislative reform unless they are addressed. Is there a way of doing that without sacrificing the goals of increasing accountability and allowing more victims of police abuse to seek damages?

Sen. Tim Scott (R–S.C.), who last year introduced a police reform bill that did not address qualified immunity at all, lately has been floating the idea of allowing lawsuits against police departments rather than individual officers. That approach would not change the allocation of financial responsibility, since local governments already routinely cover the cost of settlements and damage awards. From 2006 to 2011, Schwartz found in a survey of 44 large police departments, "governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement." But Scott's suggestion would allow federal courts to declare police misconduct unlawful and award compensation in cases that otherwise would be dismissed based on qualified immunity.

What are the odds that such a compromise could win approval from both houses of Congress? In a May 18 letter to Senate Majority Leader Charles Schumer (D–N.Y.) and Senate Minority Leader Mitch McConnell (R–Ky.), the American Civil Liberties Union and 87 other organizations said even the George Floyd Justice in Policing Act does not go far enough, because it ends qualified immunity only for cops and not for other government officials. That omission, they argue, effectively codifies a court-invented doctrine that is inconsistent with the text and history of 42 USC 1983—a doctrine that the Supreme Court recently has taken tentative steps to restrict and might one day decide to abandon altogether.

Any federal legislation that addresses qualified immunity without completely eliminating it, including whatever bill Scott might eventually produce, would have the same problem. Since Senate Republicans view the outright abolition of qualified immunity as a non-starter, insisting on that result effectively means that the doctrine's future will depend on whether five justices eventually decide it was a mistake.

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  1. Republicans have gone full Trump big and unfettered government, and the police are the grasping fingers and stinking toes of that government – they will not restrict them.

    1. “‘You’re Going to Kill Him!’: Grandma Cries as Cops Taser Innocent Grandpa, Slam Him to the Ground”

      “Wendell, ID — A Gooding County sheriff’s deputy has been suspended this week after video posted to Facebook showed him taser an innocent grandfather and throw him to the ground, leaving him injured and bloody. The grandpa, 78-year-old John Hall had been followed home by a trucker in a fit of road rage and police attacked him.

      According to police, before the innocent grandpa was tasered and slammed to the ground, a truck driver reported Hall for road rage, falsely claiming that Hall had a gun in his vehicle. The trucker then stalked Hall and followed him and his son all the way to their home before parking down the road and guiding in cops like attack dogs.”

      https://thefreethoughtproject.com/deputy-suspended-attacking-grandpa-taser/

      A.C.A.B.
      All
      Cops
      Are
      Bureaucrats

      “The average man, whatever his errors otherwise, at least sees clearly that government is something lying outside him and outside the generality of his fellow men — that it is a separate, independent, and hostile power, only partly under his control, and capable of doing him great harm. What lies behind all this, I believe, is a deep sense of the fundamental antagonism between the government and the people it governs. It is apprehended, not as a committee of citizens chosen to carry on the communal business of the whole population, but as a separate and autonomous corporation, mainly devoted to exploiting the population for the benefit of its own members.” ~ Murray N. Rothbard

      1. You are blaming the cops, and not the trucker?

    2. WRONG

      Police are the agents of government, and are being turned to silly enforcers. We saw it with masks, and now we will see it with pronouns.

      They’ll be restricted quickly and soonly.

  2. >>More than four-fifths of Democrats

    elected ones, or those who vote (D) even after they’ve been lied to about ending QI?

  3. Republicans won’t do a thing about it unless they can use it as a cudgel to bludgeon the Dems with.

    It’s a zero sum game for them and they’re not coming in good faith ever.

    1. Typical leftie shit can’t tie her own shoelaces but likes to talk smack when she knows nothing. Get a job hippie.

      1. Open wider, buckleup.

        Your betters are not nearly done shoving progress down your whining, powerless, bigoted, right-wing throat.

        You get to whimper about it as much as you want.

        Carry on, clinger. But you will comply.

    2. Wrong per usual. Socialists (you), had a great chance to sway republicans on this issue on legitimate CI cases.

      Instead, you delved into race issues without much substance and made those your anvils to hammer the right with. Find better hero’s.

      1. This is where the idiots ignore the Tim Scott reform bill because it destroys their simplistic views of reality.

        https://www.usatoday.com/story/news/politics/2020/06/17/george-floyd-senate-gop-introduce-police-reform-bill/3202254001/

        It is also largely where reason advocates for federal action instead of federalist policies to find the best way forward.

        1. But it didn’t specifically ban qualified immunity, so Sullum/Stroozle says it’s bad. Plus Tim Scott is an uNcLe tOm or something.

    3. If they really want to sabotage the dem’s effort then just insist that it will apply to all government employees and not just cops. Let’s face it you are much more likely to have your civil rights violated by someone other than a cop, and then when you protest they will call in the cops to enforce it. Let’s say you have a school age child and they are being forced to attend school by zoom and during the session the teacher see’s something that offends them…say a bb gun or a Trump bumper sticker. And that teacher then berates the child and attempts to get your child expelled, what is the most you can do now, complain to the district? If they lift QI you could sue the teacher for violating your child’s civil rights. Or some zoning board member who see’s something in your yard they don’t like and decides to make an example of you, now you can sue them too. And there is no way the Dem’s will let their foot soldiers lose their QI.

      1. Yes. Notice how these ‘reforms’ don’t touch federal law enforcement? The Democrats, being the party of big, centralized, administrative government will protect federal officers and bureaucrats at all levels.

  4. Everybody was talking about it before the “mostly peaceful” protests set police reform back a few decades.

    1. This. The “protestors” had even me second guessing my long held beliefs on police reforms.

        1. Ditto. I even considered buying a firearm for the first time or buying an Abrams tank, in anticipation of a need for protection.

          1. so, potential first firearm, but not the first time for an Abrams tank? Where do you park your current one? =)

  5. Deep thoughts by Lord Strazzle

    1. That was straight up the most hilarious thing I’ve ever seen here at good old Reason.com. An epic self-own for the ages.

  6. To a Republican, no cop can do any wrong, unless they are a capital cop. Republicans hate unions, unless they are police unions.

    It was crazy how every time a Black guy got killed by police my Facebook feed got inundated by heart wrenching memes of how cops are the unsung heroes of society. All from Republicans. Sure Democrats will praise cops too, but whenever some cop is under attack for being a dickwad racist twat, it’s only the Republicans who come out to defend him.

    Most cops are good cops. There I said it. Most cops are good cops. But when a party feels obligated to defend the bad apples one occasionally finds in cop land, it’s just slimy. Republicans need police union endorsements as much as Democrats need teachers union endorsements.

    1. Your first inference is an absolute lie. Did you think that added to your argument for some reason?

    2. You should put a big sign in front of your house “COP FREE ZONE”

  7. My guess is it will be an uphill battle with your traditional law and order republican, but I’m guessing their reasons will be very straightforward. The tricky part is the Democrat. Their reasons for pushing back will be layered in obfuscation. Unions! Teachers! Social workers!

    1. https://twitter.com/ConceptualJames/status/1401899379234160645?s=19

      A few thoughts on the AbuelaOC stunt.

      So, what actually happened here is that the Right (Walsh) intuited the right move, executed the maneuver effectively, but can’t capitalize on the win because they don’t know why it’s a win because “muh hypocrisy!” etc.

      It’s a win for this reason:

      It exposes very clearly that AOC and Leftists believe the state should solve problems even in a case where there’s an obvious failure, so all they have is to blame the system and others while taking no responsibility. That is, her approach is a fraud.

      It’s not about *hypocrisy*, it’s about *fraud*. You have to understand both that we live in postmodernity (like it or not) and how Leftists use this hyperreal terrain to their advantage (dialectically) to make gains. Hypocrisy (asymmetry) is the point. Statism is the goal.

      Exposing that Leftists are pushing for a kind of statism that always fails because it always displaces responsibility is therefore necessary. Showing that they pull this off repeatedly in rhetorical (postmodern) space where they’ve rigged the game (blaming Trump, e.g.) is too.

      The stunt capitalizes on the fraud—NOT HYPOCRISY—at the heart of Leftism today, that it’s pushing a bogus product by savvy sales. The right, by comparison, mobilized and produced results because they aren’t about to wait around for the government to do something it’ll screw up.

      AOC is saying, the government sucks and it’s someone else’s fault, so give us more power to govern.

      The troll is saying, the government is always bad at these things, and we proved that there are better solutions, and that AOC is a *fraud* and her Leftist program is a *fraud*.

      In essence, the stunt shows that AOC believes in statism and that when the state fails, more statism is the answer while simultaneously proving the absurdity of the claim by producing huge material resources to solve the real-world problem in hours.

      AOC’s message, which the right intuited, wasn’t one of hypocrisy, it’s that she either lies or doesn’t care about material harm to real people, even an elder in her family, because her beloved state isn’t the one fixing everything. She believes in the state, not community.

      Two final points: This stunt was a win in postmodern hyperreality (the Matrix), but the right doesn’t know how to move wins in hyperreality into wins in reality. Like Trump, they’re intuitive trolls, but they can’t capitalize on the wins because they can’t bridge the worlds.

      The Left, by the way, is extremely good at moving wins in hyperreality into wins in reality and even better at leaving losses in hyperreality in hyperreality without letting them affect them in reality. Trump is very good at this latter skill too.

      Second, the program of Leftism is dialectical statism. That is, it’s an endless wheel of complaining rhetoric, power, rhetoric, power, rhetoric, power. That’s a fraud, however, and it’s easily exposed as such. It’s also a faith that believes the state is perfectable.

      This Leftist faith is ultimately Hegelian, so it employs negative thinking and utoianism. Hegel: “The State is the Divine Idea as it exists on Earth.” So, the state is its Jesus. This is a dangerously ridiculous notion that most people reject when they realize it.

      This religious statism is the fraud at the heart of Leftism, and so is the fact that all they have to sell it is a certain set of rhetorical strategies that work but are ultimately empty. The right needs to expose this, explain it, and articulate its alternatives.

      1. You put way too much time into that, especially after jumping to a false conclusion

        1. You could just say you don’t understand what Lindsay’s saying.

          Summary: all leftist rhetoric is posturing for Daddy Gov to be granted more power, and opponents miss the target when they highlight hypocrisy (lamenting plight without aiding it) instead of fraud (the real goal being always more power for Daddy Gov)

      2. Maybe you should join the rest of us here in reality, Nardz

        1. Tell us more about “whiteness”, fat fuck.

  8. While 73 percent of Democrats

    Fyi, this will drop depending on how you frame the question, and will probably drop dramatically if you can’t somehow manage to restrict a departure for Qualified Immunity to cops.

    There is already evidence that groups that are Democrats’ traditional constituents and special interests balking at the end of QI.

  9. End government employee unions – even if you get rid of QI as a legal protection, taxpayers will still be on the hook financially because of union contracts.

    1. This.

      People who work for government should have no power to influence how elected officials think about their labor contracts.

  10. mainly because the possibility of legal liability does not loom large in the minds of most police officers, a situation that is not likely to change much even without qualified immunity.

    This is just magical thinking. Whether you support Qualified Immunity or not, everyone can agree that under this doctrine, all public officials, including cops have lived in a system where they are practically immune from direct lawsuits. If cops (or any public official) were suddenly open to lawsuits for their actions on the job– and there is no limit to those lawsuits, why on earth would anyone think this wouldn’t have any affect on their behavior?

    It’s almost like when you’re arguing against qualified immunity, you’re arguing for it.

    1. I could be wrong, but I took that part as Sullum saying, not directly, that incentives don’t matter.

      Which is odd.

      1. the whole goddamned point of eliminating QI is incentives. Yes, sure, now someone who got roughed up by a cop can DIRECTLY sue officer Friendly who’s three payments behind on his jet ski and dodging alimony payments from two ex-wives. Huzzah! But snark aside, that’s the point. If officer Friendly’s personal bank account becomes a target, and a few high profile lawsuits get filed, you don’t think that won’t send a message? You don’t think the next officer might think a little longer and harder about how he’s going to behave if it means his wages are going to get garnished if he doesn’t temper his behavior?

        1. I think more likely, people will just stop being cops.

        2. And you don’t think they’ll be sued repeatedly for every interaction to the point where they’re either in court more than on the streets or see not doing their job as the better path? The activists want the system destroyed not reformed.

          1. Yup. Funny how libertarians love to sneer at everyone else for being too stupid/lazy/statist to look at downstream unintended consequences, but they’ll throw that logic right out the window when they see an opportunity to bash a police officer.

            In a world run by policies Diane wants implemented, she’d be calling the cops as a rapist/murderer bursts into her home, only to be told “Sorry, but we’re not interested in being sued by you and the perp”, before they abruptly hang up. Then she’d spend the last few minutes of her life trying to think of ways to blame Trump for it.

            1. This

          2. Many of the activists want the *current* system destroyed, yes, and replaced with a *better* system. How is this sinister or evil in some way? All of us want to tear down existing systems and replace them with better systems in one context or another.

          3. QI is only a few decades old. QI is also for protecting them from incompetence and malice.

            Absolute Immunity still applies – as long as they do the job right.

    2. I read that as meaning that if QI is abolished, then a police officer liability insurance market would naturally arise, such as for doctors and lawyers now.

      1. It undoubtedly would. And in places that have made half-hearted attempts to curb qualified immunity, full indemnification is the order of the day. Which places those of us who have been against qualified immunity in an awkward position: We can cheer the end of qualified immunity, while assuaging supporters’ fear that no behavior will be tempered because the liability is shifted to another taxpayer funded mechanism.

      2. Yes. Because we never see cities already paying foe that legal liability insurance of their officers through city payments. Especially in the George floyd case. Youre gonna change everything jeff!

      3. There already is such a market. Civil liability insurance is alive and thriving for municipalities.

        1. But this liability insurance would be for individuals, not municipalities.

  11. Who needs Republican support? Let those authoritarian prudes and lousy right-wing cop succors do as they wish. If Democrats get a majority in the Senate and House next time around, qualified immunity may be among the casualties.

    1. They’ll get right on that after they fix our immigration system. Hahahahahahahaha

  12. Scott’s proposal is just a proposal to abuse the citizenry in general in addition to the cops that abused some citizen(s) in specific. Yes, some portion of any judgement or settlement for cop abuse is going to come from the cop’s employer, thus the poor abused taxpayers, rather than all from the cop and his union; but Scott, simply, seeks to federally mandate the gifting of indemnification by we taxpayers to every abusive cop. We need to go far and fast in the opposite direction by requiring as much personally responsibility from cops as practical, by putting a complete end to QI and requiring a bond from them partially comprised of their pensions. If we want to reduce abuse, we have to hit them where they live and love; and all cops live for and all that they love are their taxpayer bleeding fat, early, defined benefit pensions.

    A.C.A.B.
    All
    Cops
    Are
    Bureaucrats

    Yes, even simple traffic stops are dangerous – for the citizens, not the cops.

    Xander Mann (16) traffic violation.
    “A deputy used his vehicle to disable the car, forcing it sideways to a stop. Deputy Gerardo Zazueta shot and killed the boy.”

    https://fatalencounters.org/view/person/victim/385ef7df/

    1. Dude, pick a better example. This was not a simple traffic stop. He led the police on a high speed chase and attempted to run a deputy down.

  13. NO. We need to preserve the false dichotomy between the status quo and complete elimination of qualified immunity.

    Heaven forbid we inject some reason into the concept that a cop can be both wrong and not personally liable.

    Fck, I wouldn’t want to cough up a check every time I screwed up at work.

    1. “Fck, I wouldn’t want to cough up a check every time I screwed up at work.”

      But, everyone outside of government already does have to if they screw up in a way that harms anyone, rather through a suit, a settlement, or a bond forfeiture.

      Contractors, Doctors, pilots, accounts and such even pay in advance whether they screw up or not via insurance and or bonds.

      QI, wrongly, sets those in government, especially cops, on a pedestal above every private individual and the law.

    2. If you are wrong in the line of duty then you’re covered by absolute Immunity.

      And when you have the power of life and death in your hands then maybe you should be a little more careful?

  14. Republican politicians count on the LEO vote. Cops like QI. They’re not going to support someone who will take that away from them. Do the math.

    1. Just curious. Do you understand that it isnt just cops that are covered by QI? If your argument here was accurate, every public union in California would support the GOP as they all get immunity for overstepping the rights of citizens in the line of work. Weird right? I mean understanding that would just ruin the narrative.

  15. What gets me is they didn’t ask these questions of demagogues, they asked them of hundreds of ordinary Americans. Do ordinary Americans identifying as either Democrats or Republicans think, “Bwahahaha! With/without qualified immunity, my people can bludgeon their people for my pleasure!”?

  16. End QI for all gov’t workers. let students sue public school teachers for diplomas with no education.

  17. allowing lawsuits against police departments rather than individual officers

    This could work but it would have to come out of the departmental budget directly not the general fund. That might get the “good” cops, should they exist, an incentive to actually police the bad cops and reduce the incentive for higher ups to cover for the bad apples before things go completely off the rails.

  18. Cops should be stripped of qualified immunity and put on a malpractice insurance model such that bad cops can’t afford the insurance and become unhirable.

    1. Good idea.

  19. Which State??? Last I checked ‘cops’ were local affairs. Are we addressing U.S. Marshals? The federal government sure thinks they are the only ‘royal’ government these days.

  20. Maybe we cam get some Reasonistas to rethink theor undying love or Sec 230 above all else, including the Constotution, Free Speech, and Muh Private Companeez – if we start calling it Qualified Immunity for BigTech

  21. Jesus Fucking Christ. Now do Democrats. Every politician of every stripe just wants this issue to go away because it means standing up to the police unions.

    No QI
    No unions
    No records secrecy

  22. And here’s a (radically) originalist Constitutional take on the matter:
    Article I Section 9 paragraph 8 begins “No Title of Nobility shall be granted by the United States…” and Section 10 paragraph 1 says “No State shall… grant any Title of Nobility.

    The problem the Founders was addressing is the way those “Nobility” were above the law. The doctrine of qualified immunity likewise says that some are above the law — at least contrary to the spirit of the Constitution, and in my non-humble opinion contrary to the letter of the Constitution.

    In Harlow v. Fitzgerald, the SC betrayed its oath of office.

  23. Basic Economics says limiting or eliminating qualified immunity will change behaviors. Increasing the risk / cost to law enforcement without increasing benefits will cause fewer qualified people to enter the profession and will change law enforcement behaviors when engaging with what has become an increasingly violent and hostile criminal element in our communities. These are facts, not assumptions. The question is how much will this change the effectiveness of law enforcement. Until people are willing to seriously address these facts of basic human economic behavior, we will continue to make poor policy decisions.

  24. For the beginners in politics, you can understand about Republicans and Democrat in the following article

    This will help you give a better picture about the politics in USA.

  25. https://wapexclusive.com/ ,Any federal legislation that addresses qualified immunity without completely eliminating it, including whatever bill Scott might eventually produce, would have the same problem. Since Senate Republicans view the outright abolition of qualified immunity as a non-starter, insisting on that result effectively means that the doctrine’s future will depend on whether five justices eventually decide it was a mistake.

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