Qualified immunity has emerged as a flash point in the debate in Congress on how to respond to police brutality. Qualified immunity is a court-concocted doctrine that essentially immunizes police from civil liability for nearly all malfeasance. Conservatives argue that it is time to change the doctrine, but will Republicans in Congress listen?
Just last week in in Baxter v. Bracey, Justice Clarence Thomas “expressed doubts about our qualified immunity jurisprudence.” The case involved a claim by Alexander Baxter that the police used excessive force against him in violation of the Fourteenth Amendment because the officers released a dog on him after he had surrendered. The Sixth Circuit held that even if the officers’ conduct violated the Constitution, they could not be found liable.
Justice Thomas expressed the same concern in 2017 in Ziglar v. Abbasi. In this case, six men of Arab or South Asian descent were detained after 9/11 in a federal facility and subsequently removed from the United States. They alleged that they were unconstitutionally detained in harsh pretrial conditions and subject to punitive strip searches and abuse because of their race, national origin or religion. The Court found that, even if their constitutional rights had been violated, neither the state nor federal officials could be held liable. With respect to the state officers, Justice Thomas wrote, “Our qualified immunity precedents…represent precisely the sort of ‘free- wheeling policy choice[s]’ that we have previously disclaimed the power to make.”
Justice Thomas objects to qualified immunity because it is a doctrine created by the courts, altering the remedy provided by statute. After the Civil War, Congress passed the Civil Rights Act of 1871, also known as the Ku Klux Klan Act of 1871, which is now codified as 42 U.S.C. §1983. The law gives individuals a right to sue state officers for damages to remedy civil rights violations. The law provides no defenses or immunities. Thomas objects as a strict constructionist, believing Congress not the courts have the responsibility to legislate.
The CATO Institute, the preeminent civil libertarian think tank, has led a multi-year campaign to abolish qualified immunity. In the wake of the Supreme Court’s decision to not hear Baxter as well as another qualified immunity case in June, it wrote “qualified immunity is an atextual, ahistorical judicial invention, which shields public officials from liability, even when they break the law. The doctrine not only denies justice to victims whose rights have been violated, but also exacerbates our crisis of confidence in law enforcement.”
The Institute for Justice, a conservative litigation firm, believes accountability is essential to curb excessive police violence. It’s project on immunity and accountability “is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, then government must follow the Constitution.”
The Pacific Legal Foundation, another prominent conservative legal organization, calls qualified immunity “a blank check for government overreach.” Conservative groups including the Alliance Defending Freedom, Americans for Prosperity, Cause of Action Institute and the Reason Foundation joined progressive organizations in arguing against qualified immunity in the 2018 Supreme Court case Allah v. Milling. They argued “Qualified immunity…enables public officials who violate federal law to sidestep their legal obligations to the victims of their misconduct…undermin[ing] the public’s trust in those officials.”
The courts have signaled that Congress must act if it wants things to change. The Justice in Policing Actintroduced in both the House and Senate tries to fix the qualified immunity quagmire. The main Republican proposals do not. Neither set of proposals addresses the lack of civil remedy against federal officers who violate an individual’s civil rights. Reps. Hank Johnson and Jamie Raskin have introduced a stand-alone measure called the Bivens Act to address that oversight. It should be incorporated into any final bill.
Sen. Lindsey Graham, the powerful Chairman of the Senate Judiciary Committee has expressed openness to revisiting qualified immunity. Indiana Republican Sen. Braun has announced a separate bill to scale back qualified immunity.
With such prominent conservative support for a change in the law, and public outrage over the brutal murders of George Floyd, Eric Garner, Rayshard Brooks, Breonna Taylor, and others, the question is whether Republicans in Congress have the will to act to restore confidence in law enforcement, ensure that government is not above the law, uphold the 1871 Civil Rights Act, extend civil rights protections for actions of federal officers, and honor the lives needlessly lost. One thing is true. Our constitutional rights aren’t worth much if they can’t be enforced.