For the first time in U.S. congressional history, a bill has support from a Libertarian-Democratic-Republican coalition of lawmakers.
Introduced by Rep. Justin Amash (L–Mich.), the Ending Qualified Immunity Act seeks to squash a legal doctrine that allows public officials to violate your civil rights with impunity if those rights have not yet been “clearly established” by preexisting case law.
“It is the sense of the Congress that we must correct the erroneous interpretation of section 1983 which provides for qualified immunity, and reiterate the standard found on the face of the statute,” the bill reads, “which does not limit ability on the basis of the defendant’s good faith beliefs or on the basis that the right was not ‘clearly established’ at the time of the violation.”
Rep. Tom McClintock (R–Calif.) signed on to cosponsor, joining Rep. Ayanna Pressley (D–Mass.) and a lengthy list of other Democratic legislators who support Amash’s legislation. The death of George Floyd, the unarmed black man who was killed by former Minneapolis police officer Derek Chauvin, prompted the Republican lawmaker to back the bill.
“Whatever his motive, the killer of George Floyd had 18 complaints for misconduct, and one of his accomplices had six. Why is such misconduct tolerated by big city police departments?” he asked. “Is it because the doctrine of qualified immunity shields corrupt officials from accountability for a wide range of crimes?”
Though qualified immunity was never meant to shield police officers from actual crimes, it sports a sordid history of doing just that. The “clearly established” standard—referred to by Amash in his bill—has become an increasingly Herculean task to meet. As I wrote earlier today:
In Howse v. Hodous (2020), the U.S. Court of Appeals for the 6th Circuit gave qualified immunity to two officers who allegedly assaulted and arrested a man on bogus charges for the crime of standing outside of his own house. There was also the sheriff’s deputy in Coffee County, Georgia, who shot a 10-year-old boy while aiming at a non-threatening dog; the cop in Los Angeles who shot a 15-year-old boy on his way to school because the child’s friend had a plastic gun; and two cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant.
The cops in those cases received protection under the legal doctrine because the judiciary had not yet established in near-identical terms that those actions were unconstitutional. In other words, officers need clearer notice to know, for example, that stealing is wrong.
Even so, qualified immunity still has its supporters. “‘Clearly established’ means that the law is so clear at the time of the incident that every reasonable officer would understand the unlawfulness of his conduct,” Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit wrote in the majority opinion for Howse. “To avoid ‘paralysis by analysis,’ qualified immunity protects all but plainly incompetent officers or those who knowingly violate the law.”
When considering how the doctrine works in practice, the contradiction in Thapar’s reasoning is a bit hard to ignore. Only “plainly incompetent officers” and “those who knowingly violate the law” are exempt from qualified immunity, he says. And yet it still shielded two cops who could not deduce without the help of the courts that taking hundreds of thousands of dollars is a violation of someone’s constitutional rights.
Brynne Kennedy, the Democrat facing McClintock in the November election, called his stance “a welcome surprise,” according to McClatchy. It shouldn’t be, however, when considering that McClintock has historically erred on the side of support for police reform, even before he clinched his seat in the House.
“No-knock warrants have proven to be lethal to citizens and police officers, for an obvious reason,” he said yesterday. “The invasion of a person’s home is one of the most terrifying powers government possesses.”
For her part, Kennedy isn’t impressed. McClintock must show he will “protect Social Security and Medicare, combat corruption, and lower the cost of prescription drugs,” she said. Otherwise, his bipartisanship—rather, tripartisanship—is moot. But that logic represents a backward understanding of crosspartisan lawmaking. Indeed, by Kennedy’s definition, bipartisanship wouldn’t exist, because everyone would agree on everything.
That attitude is also counterproductive to striking down awful legal doctrines like qualified immunity and perhaps explains, in part, why so few lawmakers are willing to cross those political trenches.
Just last week, I wrote about the Republicans’ hesitance to support Amash’s bill—an odd trend when considering the GOP claims to be the party of small government. Qualified immunity puts more power in the hands of the already-powerful at the expense of the little guy. One hopes that more might follow McClintock’s lead, understanding that principled leadership need not be hamstrung by tribalism.