As Justices Mull Qualified Immunity, Could Congress End It?

By RJ Vogt | June 7, 2020, 8:02 PM EDT

Protests over police brutality and racial injustice have drawn lawmakers' attention to qualified immunity, a U.S. Supreme Court doctrine that shields public officials from civil rights lawsuits. (Sipa via AP Images)

Amid nationwide protests over racial injustice and police brutality, Democratic federal lawmakers and a former Republican have announced plans to repeal qualified immunity, a controversial U.S. Supreme Court doctrine that limits civil rights lawsuits against police.

Proponents say the concept provides police and other state officials necessary protection against nonstop litigation, but on Thursday, Libertarian Rep. Justin Amash and Democratic Rep. Ayanna Pressley introduced the Ending Qualified Immunity Act with 26 other Democratic co-sponsors.

During a press conference that same day, House Speaker Nancy Pelosi signaled support for the idea, specifically identifying "ending qualified immunity" as part of a package of bills the Congressional Black Caucus would be announcing Monday.

"We are working with the Senate Democrats as well and advancing legislation protecting equal justice and including a number of provisions including ending racial profiling, ending excessive use of force, ending qualified immunity … and addressing the loss of trust between police departments and communities they serve," she said.

Earlier in the week, Sen. Ed Markey announced on Twitter that he and Sens. Kamala Harris and Corey Booker were introducing a resolution to eliminate qualified immunity, calling it "one of the foremost tools of oppression."

No House or Senate Republicans had publicly backed either effort by Friday afternoon, despite the fact that qualified immunity has drawn scrutiny from Supreme Court conservatives like Justice Clarence Thomas as well as several Trump-appointed appellate judges. On the other end of the court's spectrum, Justice Sonia Sotomayor has said it encourages officers to "shoot first and think later."

Despite the bipartisan concerns over the issue, a 2018 analysis by Suffolk University law professor Karen M. Blum found that, since 1982, plaintiffs had won just two out of the 30 qualified immunity-related cases that reached the high court.

Clark Neily, vice president for criminal justice at the libertarian Cato Institute and an outspoken advocate for reforming the doctrine, said it might be time for the legislature to step in and help the court "clean up its mess."

"We're really at an inflection point in the national mood right now, and the anger about the lack of police accountability is absolutely well-founded," he said. "Inevitably, this is going to require a legislative and judicial fix."

The Court's Conundrum

Three years ago, Justice Thomas highlighted in a dissent how the court developed the doctrine after a 1967 ruling that held police officers could assert a "good faith" defense when sued for allegedly unconstitutional arrests under the Civil Rights Act of 1871.

Subsequent court rulings morphed and expanded the concept, ostensibly to protect law enforcement and other state officials from needless lawsuits, and today, officers are immune for any conduct that "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

But Justice Thomas' dissent made an originalist argument that the standard "is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act."

"Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress," he said. "In an appropriate case, we should reconsider our qualified immunity jurisprudence."

In the years since his invitation, numerous cross-ideological high court petitioners have urged the justices to take up the issue — to no avail.

Thursday, the high court considered accepting 12 different cases that could lead to changes, most of which have been considered at least five times before. One has been rescheduled nine times over the past 13 months.

"In 20 years of litigating, I've never seen anything like this delay and the sheer number of cases raising similar issues," Neily said. "At first we were calling it sequencing, but now we're just calling it kicking the can down the road."

Christopher Walker, a professor at Ohio State University's Moritz College of Law who's defended qualified immunity in articles and debates, told Law360 that one reason for the court's delay could be the fact that the current petitions all seek to end qualified immunity entirely, which could be a bitter pill to swallow for justices committed to preserving precedents.

"From a stare decisis perspective, that's a strong reason why the court shouldn't be the one to move and change things," he said. "But Congress is a different matter. They should always look at laws and see if circumstances merit a change."

How Far Can Reform Go?

The qualified immunity legislation introduced by Pressley and Amash doesn't just advocate for "a change."

The pointedly brief 4-page bill aims to eliminate the original "good faith" defense as well as the current doctrine that protects any official who "believed, reasonably or otherwise, that his or her conduct was lawful at the time it was committed."

Walker said the proposal might need some tweaking to attract the bipartisan support it currently lacks.

"I would be very surprised if a blanket elimination of qualified immunity would garner 60 votes in the Senate," he said.

He said possible changes could include things like abolishing the doctrine as it applies to law enforcement officers only, but leaving it in place for other state officials like teachers, firefighters and civil rights commissioners.

Lawmakers could also narrow the specific constitutional violations — excessive force or unlawful searches and seizures or any other topics driving "the current political call for reform," as Walker said — that would no longer be protected under the doctrine.

"Congress may want to protect officers in some contexts, such as First Amendment speech rights or Second Amendment gun rights," he said.

Mike Ranalli, an attorney with Lexipol and former president of the New York State Association of Chiefs of Police, told Law360 that the bill, as it stands now, would impact taxpayers more than its supporters may realize.

"It costs a fortune to litigate these cases," he said. "Is qualified immunity a perfect system? No. But it does allow for the screening of some cases that just don't need to clog up the works and the taxpayer shouldn't have to pay for."

Ranalli added that the viral footage of the killing of George Floyd, a black man who white Minneapolis police officer Derek Chauvin fatally pinned to the ground for nearly nine minutes on May 25, "turned my stomach" and represented the kind of conduct that should not be protected by qualified immunity.

"I occasionally do work as an expert witness, and I'm the first to tell somebody, 'You need to write the check because your officers did the wrong thing here,'" he said. "On the other hand, I have seen tragedies where the person put the whole thing in motion by his or her own actions and put the officer in a [tough] situation."

'Nobody Is In Charge'

The Supreme Court's most recent moves on qualified immunity came on May 18, a week before Floyd's killing sparked nationwide protests and generated widespread public support for reform.

In denying two certiorari petitions, the justices refused to reverse lower court rulings that protected police officers accused of stealing $225,000 and another officer who allegedly slammed a small woman to the ground. A third denied petition involved allegations that a school board superintendent violated the First Amendment rights of a woman who hoped to start a charter school in Louisiana.

If the justices decide to act on some other case before Congress can pass a bill, a judicial change could go much further than merely repealing qualified immunity — potentially even limiting plaintiffs' ability to sue police in the first place.

That was the path Fifth Circuit Judges James Ho and Andrew Oldham advocated in an August 2019 dissent. Drawing heavily on writing by the late Justice Antonin Scalia, both Trump appointees said any reassessment of the doctrine should "examine disputed precedents that expand, as well as limit, liability."

Monroe v. Pape, the 1961 precedent they highlighted, allowed for federal civil rights suits against police officers. Because it turned on an arguable interpretation of a vague phrase in the 1871 Civil Rights Act, the judges argued that case, too, should be on the chopping block if the court's conservative majority wants to roll back the ensuing immunity doctrine.

"Originalism for plaintiffs, but not for police officers, is not principled judging," Judges Ho and Oldham wrote.

Neily said he would be surprised if either of those judges would return to that position in the current environment, however.

"That might have been something people talked about before; to offer it now would be explosive," he said, acknowledging widespread civil unrest against police who seem to act with impunity. "It's an offensive argument."

Neily added that, while the court should be the branch to abolish the doctrine and "clean up their mess," Congress should be the branch to "fine-tune" the laws surrounding police accountability.

But the prospect of competing efforts is one that worries Will Baude, a University of Chicago law professor who's written several seminal law review articles on the doctrine.

In an interview last week with Law360's Pro Say Podcast, Baude expressed concern that both branches considering action could end up leading to no action at all.

"I do worry about a world where Congress thinks, 'We don't need to do anything because the court could always step in and fix it,' and the court thinks, 'Well we don't need to overrule our prior decisions because Congress could change it if they want to,'" Baude said. "And then nobody is actually in charge of seeing what we are doing makes sense."

--Editing by Aaron Pelc.

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