Senate Democrats recently introduced a resolution pushing for an end to “qualified immunity,” a legal doctrine created by the Supreme Court that shields government employees from lawsuits and has been criticized as allowing officials to escape accountability for violating peoples’ rights. The Democrat Senators may rue this effort, as the principle also covers a limitation on lawsuits against elected officials. If that was lifted they could also be sued.
“Law enforcement should not be completely shielded from accountability when they violate someone’s civil rights,” said Senator Kamala Harris (D-CA). “It is clear that the Supreme Court’s qualified immunity doctrine is broken and in need of reform. It is time that we say clearly that police officers should be held accountable to the law and to the people they are sworn to protect, period.” Co-sponsoring the resolution with Harris were Senators Edward Markey, Cory Booker, Bernie Sanders, Elizabeth Warren, and Chris Van Hollen.
The resolution says that the Senate “recognizes and acknowledges the legal and racial inequities inherent in the judicial doctrine of qualified immunity as that doctrine is applied to law enforcement officers” and that it is “a mistaken judicial interpretation of a statute enacted by Congress. [B]y narrowly construing the ‘clearly established’ standard so that any factual or contextual distinctions between the challenged use of excessive force and the use of excessive force in a prior case, even small or insignificant distinctions, are cause for qualified immunity with respect to the challenged use of excessive force,” emphasizing the doctrine “unjustly precludes the victims of police violence from vindicating” their rights.
Senator Booker said in a statement: “For too long our courts have closed their doors to people seeking redress when police violate their constitutional rights. We’ve got to ensure that there is access to justice to truly hold police accountable for their misconduct.”
The high court has upheld qualified immunity as reflecting “the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority,” including police officers. It said that because of their need to “make split-second decisions, officers are protected from being sued for official actions unless their actions very clearly are governed by previous precedent and any reasonable official in the defendant’s shoes would have understood that he was violating” a person’s rights. Fifth Circuit Court of Appeals Judge Don Willett, a Trump favorite, agrees.
.@JusticeWillett dubitante on qualified immunity: "I write
separately to register my disquiet over the kudzu-like creep of the modern immunity regime"https://t.co/GuZoI5NXg5 pic.twitter.com/sxDbyHVorV
— Josh Blackman (@JoshMBlackman) August 31, 2018
“To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable,” said Willett in a 2018 opinion. “Qualified immunity is the cornerstone of America’s near-zero accountability policy for law enforcement,” said Clark Neily, the libertarian CATO Institute’s vice president for criminal justice, adding, “It is an illegitimate, judge-made legal doctrine that has systematically undermined our right to be free from the illegitimate use of force by government agents and that helped set the stage for the brutalization of George Floyd and countless others, particularly in communities of color. We applaud the efforts of Senators Harris, Markey, and Booker to right this historical wrong and create a culture of genuine accountability for police, prosecutors, and other public officials.”
— Clark Neily (@ConLawWarrior) June 4, 2020
But Neily and CATO are thinking much beyond only the ability to sue police officers. They want all public officials on the potential civil action hot seat.