A Qualified Immunity Compromise Is Crumbling. You Can Thank the Law Enforcement Lobby.

Police unions so often protect their own—at the expense of the public.

Police accountability—once seldom-discussed among national politicians—has become a topic of constant conversation in Washington, D.C., as lawmakers attempt to bang out a compromise on criminal justice reform. Central to that debate is qualified immunity, a legal doctrine that makes it onerously difficult to hold government officials accountable in civil court when they violate your constitutional rights.

The doctrine was once obscure. Yet qualified immunity reform is now the flashpoint of those negotiations. After months of parleying on Capitol Hill, a compromise that once looked promising is now in jeopardy. Some Republicans are reportedly proposing an alternate option: Instead of reforming qualified immunity, they want it to be codified in the law.

Any movement on qualified immunity was seen as a nonstarter when Donald Trump was president, but a group of Republicans led by Sen. Tim Scott (R–S.C.) showed an increased willingness to work out a reform during this congressional session. While the GOP would not acquiesce to letting victims sue individual police officers, Scott announced that he would be open to having departments foot the bill for misconduct.

That compromise now appears to be crumbling. Though the Fraternal Order of Police had told Sen. Cory Booker (D–N.J.) it was open to the proposal, two other cop lobbies, the National Sheriffs' Association and the National Association of Police Organizations (NAPO), have now weighed in on the other side.

In a meeting led by Scott and Sen. Lindsey Graham (R–S.C.), the sheriffs rejected the idea that their departments would have to take the heat for rogue officers' actions. Meanwhile, NAPO sent its members a message headlined "Urgent, Action Needed! Senator Booker Proposes Horrible Police Reform Bill."

Some Republicans now want to move in the opposite direction: They want qualified immunity—a creation of the U.S. Supreme Court—to be codified into federal statute. Alternatively, Graham has proposed letting departments be sued but only for cases involving death and serious bodily injury, which he calls a "sweet spot."

Qualified immunity protects misbehaving state actors from federal civil suits unless the precise way they misbehaved has been ruled unconstitutional in a prior court ruling. In practice, it has shielded a cop who killed a man who had been sleeping in his car; two cops who tased a suicidal, gasoline-covered man, causing him to burst into flames; and a cop who shot a 10-year-old boy while aiming at a nonthreatening dog. Often, the courts don't shy away from condemning such conduct—and sometimes openly admit that the victim's rights were violated. Yet the above officers did not have to face accountability for their actions, as there were no previous court rulings on the exact matters at hand.

But the doctrine also protects actions that extend beyond death and serious physical harm. Consider the more than two dozen cops who received qualified immunity after throwing explosives into an innocent 78-year-old man's home during a SWAT raid on the wrong house, or the two cops who got qualified immunity after stealing $225,000 during a search warrant, or the cop who ruined a man's car after conducting a bogus, two-hour-long drug search for which he lied to obtain consent. Under Graham's proposal, those victims would still be barred from suing.

That's what some police unions and Republicans are trying to maintain, and perhaps to entrench even further.