“YES” on H.R.1470/S.492 – Ending Qualified Immunity Act.

(Quote here by Robert McNamara, Institute for Justice)

We thought this was an illuminating debate on this issue.

Deeper Dive – So what happened to the “George Floyd Justice in Policing Act?“

On March 3, 2021, the House of Representatives approved the George Floyd Justice in Policing Act (H.R. 1280), a massive overhaul of American policing that would make it much easier to sue rogue officers. Among its many provisions, the bill would eliminate “qualified immunity” for all local, state, and federal law enforcement officers. Said Rep. Ritchie Torres (D-NY)“The purpose of the George Floyd Justice in Policing Act is not to second guess officers who act in good faith, the objective is to hold liable officers who repeatedly abuse their power and who rarely, if ever, face consequences for their repeat abuses.” It was blocked by GOP opposition in the evenly divided Senate.

However, the bill had a loophole – it only applied to law enforcement officers!

If it had been passed as written, it would have codified gualified immunity as a defense for those government workers who were not police – such as “social workers accused of sexual harassment, prison guards who forced a “completely innocent” woman to remove her tampon for inspection, and medical board officials who rifled through a doctor’s office without a warrant.“

To address this concern, Rep. Ayanna Pressley and Sens. Ed Markey and Elizabeth Warren reintroduced a separate bill – H.R.1479 – Ending Qualified Immunity Act, which would completely abolish this legal shield for all local and state government employees (though not for federal workers). 

(Rep. Ayanna Pressley’s full statement here._

“Thursday, March 31, the Judiciary Committee Subcommittee on Constitution, Civil Rights, and Civil Liberties will hold a hearing titled, “Examining Civil Rights Litigation Reform, Part 1: Qualified Immunity.” This presents a great opportunity to uplift H.R. 1470 Ending Qualified Immunity Act.

This bill eliminates the defense of qualified immunity in civil actions for deprivation of rights. Qualified immunity is a judicially created doctrine that protects government employees or those acting with state authority from being held personally liable for constitutional violations.

The bill provides that under the statute allowing a civil action alleging deprivation of rights under color of law, it shall not be a defense or immunity to any such action that (1) the defendant was acting in good faith or believed that his or her conduct was lawful at the time it was committed; (2) the rights, privileges, or immunities secured by the Constitution or federal laws were not clearly established at the time of their deprivation; or (3) the state of the law was such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.

Your partnership has been invaluable in this movement to end qualified immunity. Because of your advocacy, we currently have 41 cosponsors on H.R. 1470 and are pushing for more cosponsors.”

Even deeper – Where did the idea of “qualified immunity” come from?

Note: Colorado, Connecticut and New Mexico have already passed laws that allow citizens to sue specified government officials for violating constitutional rights and have explicitly forbidden government officials from seeking qualified immunity in those legal battles, as has New York City.

“What was the doctrine originally intended to do?

The 1871 Civil Rights Act, a Reconstruction-era law largely aimed at protecting Black Americans from violence, allowed people who were deprived of their constitutional rights by state or local officials acting “under color of law” to sue in federal court. This provision launched the U.S. Code’s Section 1983, which would form the basis for many cases against police officers.”

Nine decades later, the Supreme Court created qualified immunity in 1967 “on the ground that it reflected common-law, good-faith immunities available under state law,” Joanna Schwartz, a professor at the UCLA School of Law, told MarketWatch in an email.

“At the time, the Court described the immunity as necessary to protect officers from personal liability when they have acted in good faith,” she said. “The justifications for the doctrine have changed over time — now the Court focuses not only on financial liability for officers but also on the need to shield them from the costs and burdens of defending themselves from insubstantial cases.”

The qualified-immunity doctrine, she added, “has shifted a great deal in the decades of its existence.” 

“It originally just protected good-faith behavior. Then in 1982, the Court redefined the doctrine so that it no longer turned on evidence of an officer’s good faith but, instead, focused on whether the law was ‘clearly established,’” she said. “And the definition of ‘clearly established’ law has shifted over time. Now, law is only clearly established if the Supreme Court or a court of appeals has held unconstitutional virtually identical conduct to the case on point.”

https://www.marketwatch.com/story/they-get-a-get-out-of-jail-free-card-why-law-enforcement-and-other-government-officials-are-protected-from-civil-lawsuits-2020-06-24

“In 1982, the Supreme Court redefined the qualified-immunity doctrine so that it no longer turned on evidence of an officer’s good faith but, instead, focused on whether the law was ‘clearly established.”

The 2001 Supreme Court decision Saucier v. Katz outlined a two-step test to determine whether an official would receive qualified immunity: A court must first consider whether the facts alleged demonstrate that a constitutional right was violated, and if so, it must examine whether that right was “clearly established.” Qualified immunity applied unless the official’s conduct violated a clearly established right. But eight years later in Pearson v. Callahan, the Court held that while this two-step protocol was “often beneficial,” it wasn’t mandatory.

“What the Supreme Court has said is that in evaluating a qualified-immunity defense, courts can skip directly to the second prong — meaning if a court thinks that the law is not clearly established, they don’t have to address the question of whether this person’s constitutional rights were violated,” Ali said.

This effectively deprives families seeking some legal remedy and accountability of their day in court, Ali said. It also leads to a “perverse outcome” for people whose rights are violated in the future, he added: If the courts never decide in a certain case whether there was a constitutional violation, they don’t create the precedent necessary to show that the law was clearly established — thus leaving the door open for another government actor to do the same thing down the line. 

“You end up in this Catch-22 where courts are saying, ‘Well, you’ve got to point to a case that looks just like this one where we said it was a constitutional violation’ — but then they’re never creating those cases or issuing those decisions which made clear it was a constitutional violation,” he said. In the years since the 2009 Pearson case, “appeals courts have increasingly ignored the question of excessive force,” according to a Reuters investigation published in May. 

“In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence,” the report said. “In effect, the same conduct can repeatedly go unpunished.”

https://www.marketwatch.com/story/they-get-a-get-out-of-jail-free-card-why-law-enforcement-and-other-government-officials-are-protected-from-civil-lawsuits-2020-06-24

Here’s Ben Cohen’s statement and fact sheet on qualified immunity.