[guest post by Dana]
Over the past few days, we’ve been discussing the possibility of eliminating qualified immunity, and what that might look like. Here is what Amash is introducing:
As part of the Civil Rights Act of 1871, Congress allowed individuals to sue state and local officials, including police officers, who violate their rights. Starting in 1967, the Supreme Court began gutting that law by inventing the doctrine of qualified immunity.
Under qualified immunity, police are immune from liability unless the person whose rights they violated can show that there is a previous case in the same jurisdiction, involving the exact same facts, in which a court deemed the actions to be a constitutional violation.
This rule has sharply narrowed the situations in which police can be held liable—even for truly heinous rights violations—and it creates a disincentive to bringing cases in the first place.
If a plaintiff knows there is no prior case that is identical to theirs, they may decline to even file a lawsuit because they are very unlikely to win.
Even if a plaintiff does file a case, a judge may dismiss it on qualified immunity grounds and decline to decide whether the plaintiff’s rights were violated, meaning the constitutional precedent still isn’t established and so the next plaintiff still can’t recover.
This can create a permanent procedural roadblock for plaintiffs, preventing them from obtaining damages for having their rights violated.
Qualified immunity was created by the Supreme Court in contravention of the text of the statute and the intent of Congress. It is time for us to correct their mistake.
My bill, the Ending Qualified Immunity Act, does this by explicitly noting in the statute that the elements of qualified immunity outlined by the Supreme Court are not a defense to liability.
The brutal killing of George Floyd by Minneapolis police is merely the latest in a long line of incidents of egregious police misconduct.
This pattern continues because police are legally, politically, and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve. That must change so that these incidents of brutality stop happening.
Until then, we must ensure that those whose rights are violated by police aren’t forced to suffer the added injustice of being denied their day in court.
UPDATE BY PATTERICO: I agree with Amash on many things but completely eliminating qualified immunity is not one of them. I understand his position is popular on the Internet — indeed, supporting law enforcement is not popular, because radical leftists are anti-law enforcement, and our criminal president has undermined respect for the rule of law on the right. But it is not immediately clear to me that it is a good idea to force police officers to defend themselves against claims that fail to establish they unreasonably violated a clearly established constitutional right. The doctrine might need some reining in. It should not be eliminated.