Democrats, including President Joe Biden, have reiterated their calls to pass the George Floyd Justice in Policing Act of 2021, specifically the measures that would alter a judicial precedent that in many cases grants government employees, including police officers, immunity from federal civil rights lawsuits.
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Advocates for reforming this judicial protection, known as qualified immunity, argue that it would create incentives for cities to exercise more oversight over their police forces for fear of losing civil rights lawsuits and paying out large settlements or judgments.
“What’s unique about the civil rights lawsuit,” said Clark Neily, senior vice president for legal studies at the Cato Institute, “is that it’s the only avenue of accountability that can be opened and pursued by the victim.”
Criminal prosecutions of police officers are rare, Neily said, because of the obvious conflict of interest between prosecutors and the police officers they work with every day. External civilian reviews or internal affairs investigations by police departments tend to be ineffective because of the political power police departments and their unions can exercise over the process. And while there are some cases in which police officers are criminally prosecuted for excessive force, such as in the Nichols case, these prosecutions are rare.
“[Police] know they’re going to get a free pass most of the time. They know they’ve been successful in neutering civilian review. The thing they really fear … is a civil rights lawsuit,” Neily said.
“Hopefully, some of them will say ‘enough is enough’ and … pass measures that really begin to dismantle these structures and polices that give rise to these horrible, horrific cases of police brutality and misconduct,” Lee said.
But Republicans have already begun pushing back against arguments for passing additional legislation.
“I don’t know if there’s anything you can do to stop the kind of evil we saw in that video,” Rep. Jim Jordan of Ohio told “Meet the Press” on Sunday.
The tide has been moving against reform
Legislation proposed by Democrats in the two previous Congresses would have substantially altered the doctrine of qualified immunity, while other bills proposed by Democrats would have scrapped it entirely.
But at least so far, the political roadblocks to reforming the doctrine remain in place.
“The roadblock was GOP establishment and it was nonnegotiable for a solid block of GOP senators who felt very strongly. It really became a line in the sand,” Neily said. “We had productive discussions with Tim Scott and his staff. But it emerged as a nonnegotiable point of disagreement.”
Scott issued a statement Friday condemning the “vile abuse of power” and “unwarranted torture of a man already in handcuffs,” but he did not call for any specific policy actions. While calls for revising or abandoning qualified immunity have emerged again, there’s no sign Scott or other Republicans have moved on the issue.
Scott’s office did not respond to a request for comment from Grid.
“You will never see a more diverse array of groups that agree on anything as they agree on qualified immunity,” Neily said, citing work Cato had done to bring together groups from across the political spectrum to oppose qualified immunity.
“But the reason it’s not the right place to start is because officers are always indemnified for wrongful conduct.”
Qualified immunity in the states
While Wertheimer is skeptical of how much focus the legal and advocacy community puts on qualified immunity, he also acknowledges that he deals with it in his legal work. He said that he might not pursue some false arrest claims because the size of the claim might be relatively small and it’s possible the case would be strangled in the crib by the qualified immunity doctrine.
Even in a world without qualified immunity, cities that were then responsible for more civil rights claims would still find it difficult to discipline and remove problematic officers thanks to their strong union protections. “Ultimately, [lawmakers] don’t want to take on the unions,” Wertheimer said.
“Financially it matters to cities a lot,” Wertheimer said
And for officers themselves, Wertheimer said, qualified immunity can get them out of depositions, trials and time spent with an attorney. There’s also, he said, “a sense of impunity, they like the impunity, there’s value in the impunity.”
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