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Thursday, June 25, 2020

Lone Republican Senator Introduces Bill to Roll Back Police Liability Shield

Qualified immunity is not truly in line with conservative principles.

Image credit: YouTube screenshot from CBS News

Some Republicans have called repealing or rolling back “qualified immunity,” the legal doctrine that shields police officers from liability, a “poison pill” that can’t be included in any criminal justice reform package. But other leaders in Congress disagree—and Sen. Mike Braun is the latest to back qualified immunity reform.

The Indiana Republican just introduced the Reforming Qualified Immunity Act,” a bill that would reduce the liability shield for all government employees, not just police officers, back to the original standard, which only protected them in a narrowly-defined set of cases. The current “qualified immunity” standard, created via judicial decree, makes it extremely difficult to sue any government official who violates your constitutional rights, unless there is an exactly identical case available as precedent.

“Due to the judicial branch’s overreach of power, government employees have access to an overly broad qualified immunity defense in which protection is extended to those acting under the color of the law, even when they commit egregious acts which deprive fellow citizens of their constitutional and statutory rights,” Braun said.

“This legislation would permit law enforcement officers who act in accordance with the law as ordained by courts and state or federal legislatures the defense they need to perform their jobs adequately and effectively, while removing misguided protection that has been extended to those who act under the color of the law to illegally deprive citizens of the rights, privileges, and immunities secured by the Constitution and our country’s laws,” the senator continued.

Change is long overdue, and Braun deserves credit—not condemnation—for taking this principled stand. The current qualified immunity standard leaves government officials largely unaccountable for their actions and denies citizens their day in civil court.

Consider the example of Larry Hope, a former Alabama inmate who was chained to a hitching post in the sun with no bathroom breaks while guards taunted him about his thirst. Hope was unable to sue the prison officials who tormented him in civil court because under qualified immunity, there was no exactly identical case establishing this clear abuse of power as an infringement of his rights.

Sadly, Hope is no outlier.

Here’s a list from USA Today of outrageous examples where qualified immunity has shielded reckless government officials from accountability. Just in the last year, courts have held that qualified immunity shields all of these officials from civil liability for their actions:

  • Officers who stole $225,000.
  • A cop who shot a 10-year-old while trying to shoot a nonthreatening family dog.
  • Prison officials who locked an inmate in a sewage-flooded cell for days.
  • SWAT team members who fired gas grenades into an innocent woman’s empty home.
  • Medical board officials who rifled through a doctor’s client files without a warrant.
  • County officials who held a 14-year-old in pretrial solitary confinement for over a month.
  • A cop who body-slammed a 5-foot-tall woman for walking away from him.
  • Police who picked up a mentally infirmed man, drove him to the county line and dropped him off at dusk along the highway, where he was later struck and killed by a motorist.

Braun’s proposed reform is long overdue.

Some Republicans might oppose the reform out of a sense of loyalty to police officers. But restoring accountability standards is the only way to restore the profession’s reputation. In the long run, this will be in the best interests of the majority of officers who live up to their charge. After all, what do you think would ultimately happen to the reputation of the medical profession if doctors were shielded from liability for gross misconduct?

Moreover, qualified immunity is not truly in line with conservative principles. There is nothing consistent with limited government conservatism about regulatory carve-outs that shield abusive government officials from accountability for their actions.

In fact, “Drain the Swamp” has become a rallying cry for conservatives who want to hold unelected government bureaucrats accountable. So why should government officials be exempted from the liability standards that apply to everyone else?

And even more fundamentally, conservative values center around personal responsibility: the belief that individuals should be accountable for their conduct, and not be shielded from consequences by the government. How can we credibly criticize welfare policies that enable irresponsible license while defending a doctrine that has allowed police officers to get away with almost anything?

If anything, officers of the law should be held to higher standards, not lower. And isn’t high expectations one of the ways we show respect?

Braun’s reform offers a great place to start fixing the flaws in our criminal justice system.

The senator expects to get 5 to 7 Senate Republicans and some Democrats on board with his proposal. The bill has the backing of conservative groups such as FreedomWorks, Americans for Prosperity, the R Street Institute, and Right on Crime. Meanwhile, a tripartisan bill in the House co-sponsored by Rep. Justin Amash, a Michigan Libertarian, and Rep. Ayanna Pressley, a Massachusetts Democrat, would abolish qualified immunity entirely.

The future of these specific bills remains uncertain. But one thing is quite clear—for the victims of police brutality and for non-abusive officers alike, qualified immunity reform can’t come soon enough.