“The race of a police office isn’t the determining factor of whether they’re going to commit excessive use of force, but the race of the victim.” – Ben Crump.
The 2021 bill – George Floyd Justice in Policing Act – addressed a wide range of law enforcement policies and issues including:
- Lowering the criminal intent standard—from willful to knowing or reckless—to convict a law enforcement officer for misconduct in a federal prosecution,
- Limiting qualified immunity as a defense to liability in a private civil action against a law enforcement officer,
- Granting administrative subpoena power to the Department of Justice (DOJ) in pattern-or-practice investigations.
- Restricting the use of no-knock warrants, chokeholds, and carotid holds.
- Creating a National Police Misconduct Registry—to compile data on complaints and records of police misconduct
- Creating uniform accreditation standards for law enforcement agencies and requires officers to complete training on:
- racial profiling,
- implicit bias
- the duty to intervene when another officer uses excessive force.
What that bill was missing: Its scope was limited to law enforcement officers. Plenty of other government officials, such as prison guards, can and do violate the rights of citizens, including their right to continue living. A separate bill – the Ending Qualified Immunity Act– was proposed to close this loophole.
Let’s put them both together this time!
Action: Tell your representative and senators we want systemic change – Re-start and improve the George Floyd Justice in Policing Act
Minimal script: I’m calling from [zip code] and I want Rep./Sen. [___] to know that I do not accept the “bad apple” defense for the officers involved in the the death of Tyre Nichols. They were operating within a system that encourages the targeting of Black and Brown people with excessive force. I want Rep./Sen. [___] to cosponsor and actively support a new version of the George Floyd Justice in Policing Act. This time it should incorporate provisions from the 2021 “Ending Qualified Immunity Act, and abolish this shield for ALL government employees – local, state or federal – who harm others under the color of law and deprive them of their constitutional rights.
What is the GOP-led House planning on doing about this, unless they get a lot of feedback from their constituents?
First, there’s going to be a lot of “bad apple” talk.
“BAD APPLES” is for police violence what “THOUGHTS & PRAYERS” is for gun violence. The GOP use both to imply that nothing can be done (Rep. Jim Jordan has already said exactly this!), to protect their donor classes (police unions, NRA and gun manufacturers and far-right constituents) and to distract by blaming the victim and their community. Oh, and single mothers! And Democrats!
Rep. Jim Jordan said lawmakers should look into measures “to help this, to make sure they (law enforcement officers) have the proper training, but that efforts should remain on state and local levels.
This will all be useless, as Sue Rahr wrote in her article “The Myth Propelling America’s Violent Police Culture – I worked in law enforcement for decades. Officers who see themselves as noble heroes can be the ones who do the most harm.”
This past weekend, as I watched the videos of Tyre Nichols being beaten to death, I asked myself, Why does this keep happening? But I know the answer: It’s police culture—rooted in a tribal mentality, built on a false myth of a war between good and evil, fed by political indifference to the real drivers of violence in our communities. We continue to use police to maintain order as a substitute for equality and adequate social services. It will take a generation of courageous leaders to change this culture, to reject this myth, and to truly promote a mission of service—a mission that won’t drive officers to lose their humanity.
Meanwhile, Rep. Jordan prefers to concentrate on the alleged “weaponization” of the federal government, in furtherance of the GOP agenda to waste time and money while trying to destabilize democracy.
If you have a GOP legislator, remember to call their offices every day and urge them to pass this bill and encourage your friends to do so as well.
So what happened to the original “George Floyd Justice in Policing Act?“
On March 3, 2021, the Democratic 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, that bill had a loophole – it only applied to law enforcement officers!
If it had been passed as written, it would have codified qualified 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 introduced a separate bill – H.R.1479/S.492 – Ending Qualified Immunity Act, which would have completely abolished this legal shield for all local and state government employees (though not for federal workers).
(Rep. Ayanna Pressley’s full statement here.
“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.
Neither version was passed.
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.