It seems like a no-brainer. If a government official deprives an American of his or her constitutional rights, there should be consequences. Yet, time and again, in the case of police brutality, there has been no criminal or civil accountability. Congress should fix civil remedy now.
Congress has already spoken once. In 1871, it passed a law that allows individuals the right to sue for violation of constitutional rights by state actors. The courts, however, eviscerated the law through a court created doctrine called qualified immunity. Qualified immunity provides that state actors, like police officers, are immune from liability unless they have violated “clearly established law” which the courts have interpreted to mean that liability exists only when courts have found liability in other cases with the same exact fact patterns.
This judicially created immunity doctrine has led to some head scratching results. Police obliterated the home of Shaniz West after she gave them permission to search the home for an ex-boyfriend who was suspected of a crime. He was not there, but the police destroyed the home anyway with shotgun blasts and tear gas grenades. The court ruled she had no remedy. The Sixth Circuit ruled that a plaintiff had no right to remedy when police set dogs on him while he was sitting down with his hands raised in the air. The Eighth Circuit held that there was no remedy when an officer body-slammed a small woman to the ground, breaking her collar bone and knocking her unconscious.
The Justice in Policing Act introduced in both the House and Senate tries to fix the qualified immunity quagmire. Eliminating qualified immunity enjoys support from Justices Clarence Thomas and Sonia Sotomayor. Libertarian groups like the Institute for Justice and the CATO Institute, as well as progressive organizations such as the ACLU and the Leadership Conference for Civil Rights have called for repeal of the qualified immunity doctrine. The conservative Pacific Legal Foundation calls qualified immunity “a blank check for government overreach.”
Arguments raised against qualified immunity are that it will mean that good cops lose their homes due to financial liability and it will impede cops in making life or death, split-second decisions. Neither argument is correct. The laws should ensure that government indemnifies officers so that they are not personally on the hook when acting within the scope of their duties. Doing so will incentivize agencies to ensure that they recruit, train and retain the best, and weed out the few who are not up to the demands of the position. Indemnification will also ensure that police are unimpeded in making those snap decisions to protect us. It will, however, deter cops from killing, without provocation, black men and women like of George Floyd, Eric Garner, Rayshard Brooks, Breonna Taylor, Tamir Rice, Michael Brown, and so many others.
While Congress has provided a remedy when state actors violate constitutional rights (which courts have taken away), Congress has not provided a federal analog. Federal agents should also be held liable for violating our constitutional rights. The Supreme Court tried to fashion a remedy in 1971 in Bivens v. Six Unknown Named Agents, but subsequent court decisions have rendered the protection meaningless. In its most recent decision this June, the Supreme Court found that a federal border agent was not liable for killing a Mexican juvenile when shooting him across the border. Congress must provide a statutory remedy. The Justice in Policing Act overlooks this critical accountability gap, though Reps. Hank Johnson and Jamie Raskin have introduced a stand-alone measure to fix it called the Bivens Act.
Some critics of eliminating qualified immunity (any by extension Bivens protections) argue that it misses the point by creating civil liability rather than criminal accountability. It is rare that criminal charges are filed against police officers, and it is not an either / or situation. What civil remedy provides, though, is some measure of financial incentive to ensure that local, state and federal officials uphold our civil rights.
The landmark 1803 Supreme Court decision in Marbury v. Madison held that “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Congress should ensure that protection today. Any legislation that fails to include accountability for local, state and federal officers will be a wink and nod to business as usual.