George Floyd Justice in Policing Act Essential: Ending Qualified Immunity
The George Floyd Justice in Policing Act (GFJPA) is an important step toward meaningful police reform, although advocates like the NAACP Legal Defense Fund and the ACLU would like it to be even stronger. But even this moderate bill has been delayed from consideration in the Senate due to its provision that would end Qualified Immunity, the legal doctrine that prevents victims of police brutality and malfeasance from suing the offending officers for damages in civil court.
The GFJPA passed in the House on March 3 (with no Republican votes). One of its crucial components is ending Qualified Immunity for law enforcement officers. Bystander videos and bodycam footage have shown us just how brutal police can be when Qualified Immunity protects them from personal liability.
We have said that Black Lives Matter, yet even though police departments have held hours of training on racial bias and cities have spent more than $3 billion over the past 10 years on police misconduct settlements, police continue to murder unarmed Black people with impunity. Ending qualified immunity so that racist officers can be personally sued for their brutality would make a dramatic difference in their impulsive use of fatal force. But the Qualified Immunity doctrine leaves it up to the police departments themselves, and the district attorneys who work hand-in-glove with them, to hold officers accountable for their actions.
We were alarmed to hear that during bipartisan negotiations on the GFJPA this summer, led by Senators Booker and Scott, the idea of altering the legal doctrine of Qualified Immunity was no longer under consideration. House Majority Whip Jim Clyburn has said that a GFJPA without it would still save lives by banning chokeholds, ending no-knock warrants for drug arrests, collecting data on police use of force, and other measures, and that a good bill is always better than no bill at all. However, we don’t know what other components will have been removed by the time a compromise GFJPA is put before the Senate. We will need to follow civil rights organizations’ review of it as it evolves.
The legal doctrine of “Qualified Immunity” means that victims of police brutality and malfeasance cannot sue for damages in civil court as long as the officials did not violate “clearly established” law. The case that defined the modern formulation of qualified immunity in practice today is Harlow v Fitzgerald of 1982. While the Court said it was designed to protect public officials more than the previous standards had, it was not supposed to “provide a license for lawless conduct.” Unfortunately, since Harlow, the Court has applied Qualified Immunity in ways that make it tilt significantly in favor of government defendants, so we are unlikely to get a remedy through the Roberts Court. (*8) In fact, in June 2020, the Court declined to hear cases over Qualified Immunity (*9).
Justice Sotomayor described the Court’s approach to Qualified Immunity this way in her famous dissent (co-signed by Justice Ruth Bader Ginsburg) in Kinsela v Hughes, 2019 (reversing lower court ruling against police shooting a girl who had a knife):
“This unwarranted summary reversal is symptomatic of ‘a disturbing trend regarding the use of the Court’s resources in qualified immunity cases.’ As I have previously noted, this Court displays an unflinching willingness ‘to summarily reverse courts for wrongly denying officers the protection of qualified immunity,’ but rarely intervenes where Courts wrongly afford officers the benefit of qualified immunity in these same cases.’ ...Such a one-sided approach to qualified immunity turns the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the 4th Amendment.
“The majority today exacerbates that troubling asymmetry. It is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Because there is nothing right or just under the law about this, I respectfully dissent.”
We need Congress to keep this key provision, ending Qualified Immunity, in the George Floyd Justice In Policing Act. It’s been used to excuse police misconduct for far too long.
References
George Floyd Policing Act will reportedly not include scrapping qualified immunity, The Grio, 8/18/2021
States tackling 'qualified immunity' for police as Congress squabbles over the issue, CNN 4/23/2021
Police reform: Progressives urge end to qualified immunity in George Floyd bill, CNBC, 5/21/2021
Ending Qualified Immunity Once and For All is the Next Step in Holding Police Accountable, ACLU, 3/23/2021
Clyburn says he's willing to compromise on qualified immunity in policing bill, The Hill, 5/21/2021
The George Floyd Justice in Policing Act, explained, Vox, 3/3/2021
Cities Spend Millions On Police Misconduct Every Year. Here’s Why It’s So Difficult to Hold Departments Accountable 538 and The Marshall Project, 2/22/2021
We Must Abolish Qualified Immunity to Prevent Further Police Harm — Especially for People in Mental Health Crises, ACLU, 3/19/21
What Is Qualified Immunity, and What Does It Have to Do With Police Reform? , Lawfare Blog, 6/6/2020
Supreme Court declines to hear cases over qualified immunity, CNBC, 6/15/2020