Over the past several months since the House passed the George Floyd Justice in Policing Act of 2021 in March, members of Congress have been trying to reach an agreement on a bipartisan police reform bill. One of the biggest issues that is being discussed is qualified immunity, with most republicans and democrats at odds over its inclusion in the bill. To better understand what the police reform bill could mean for qualified immunity and police accountability, the following questions must be addressed.
1. What is qualified immunity?
Qualified immunity aims to keep police officers from being held personally responsible for misconduct and unconstitutional actions on the job by granting immunity from civil suits. It is not grounded in the Constitution, but rather, a judge-created doctrine. It shields officers from being held personally liable for violations against victims’ constitutional rights, aside from certain extreme cases. Qualified immunity leaves many victims of violence, privacy invasion, property damage, sexual abuse, and other crimes committed by police officers without a path for recourse.
“Unless the course is corrected, the Senate bill that comes out of these negotiations may take us backwards by perpetuating or increasing the already stiff legal barriers to holding law enforcement accountable for violating peoples’ constitutional rights.” - Recent Letter by 29 Civil Rights Organizations to Lawmakers
2. How does qualified immunity make police misconduct cases so difficult to win?
Qualified immunity is an affront to the pursuit of justice. It makes police misconduct challenges difficult to pursue, and even more difficult to win. Unless a violation by a police officer was of “clearly established” law, qualified immunity will prevent the officer from being held personally liable. Unfortunately, the standard for “clearly established” law has such a high threshold, that it is incredibly challenging to hold police officers accountable for their crimes - even when those crimes were an assault on the victims’ constitutional rights. To make it to trial in the state of Georgia, a victim of police brutality must prove that the Georgia Supreme Court, Eleventh Circuit, or United States Supreme Court has previously found that the officer's behavior violated the plaintiff's Fourth Amendment rights.
3. What would the impact be if qualified immunity is codified into law through this bill?
Since qualified immunity is a judge-made doctrine, codifying it into law would bring about consequences that would be challenging to undo. It would make qualified immunity a more permanent fixture in the law and could keep the Supreme Court from revisiting it in the future. Codifying qualified immunity into law through this bill would further close the door on victims of police brutality and abuse, leaving them with even fewer options for recourse than they have now.
“Any proposal that explicitly codifies the qualified immunity doctrine or that the Supreme Court construes as implicitly ratifying the doctrine would lead to two distinct harms: explicit codification would make permanent today’s broad, judge-created legal impunity by giving it a Congressional imprimatur, and text that the Supreme Court could construe as ratification would likely prevent the Supreme Court from revisiting the doctrine.” - Recent Letter by 29 Civil Rights Organizations to Lawmakers
4. How should the issue of qualified immunity be handled?
Qualified immunity shields law enforcement officers from being held accountable for their crimes. Since this is a clear assault on our legal system, there is only one way it should be handled. Congress should be adopting policies to eliminate qualified immunity, rather than ratifying bills that strengthen it. The George Floyd Justice in Policing Act of 2021 passed by the House was a good start, as it aimed to limit the use of qualified immunity as a defense. Unfortunately, the likelihood of this bill being passed as is in the Senate is highly unlikely.
Get to the point:
In recent months, members of Congress have been trying to reach an agreement on passing a bipartisan police reform bill. One of the biggest issues that is being discussed on the Senate floor is qualified immunity, with the fate of the judge-created doctrine left in the balance. While lawmakers should be focusing on ways to eliminate qualified immunity, there are discussions of strengthening it by codifying it into law through the bill. If the bill is passed with support for qualified immunity, it would further close the courthouse door on victims of police brutality and abuse, leaving them with even fewer options for recourse than they have now.