Senate Democrats Introduce Bill to End Doctrine Shielding Police Officers From Misconduct Suits

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
July 2, 2020Updated: July 2, 2020

Joining a chorus of lawmakers calling for police accountability, Sens. Elizabeth Warren (D-Mass.), Edward Markey (D-Mass.), and Bernie Sanders (I-Vt.) are the latest lawmakers to introduce a bill to end the legal doctrine that insulates police officers from civil lawsuits, known as qualified immunity.

The senators on July 1 introduced the Ending Qualified Immunity bill aimed to eliminate the Supreme Court-made doctrine and provide accountability for when public officials, such as police officers, violate constitutional rights.

The doctrine of “qualified immunity” shields government officials from liability for damages claims for harm caused by their actions as they perform official duties, even if those actions violated the U.S. Constitution but didn’t contravene a “clearly established” rule. The “clearly established” rule concept, which is seen to be problematic by critics of the doctrine, requires the party suing the official to show that the facts in their case were sufficiently similar to the facts in prior court cases.

The doctrine came under attack after the death of George Floyd, who died while taking a knee to the neck by a Minneapolis police officer. The doctrine was created by the Supreme Court in 1982 as part of the top court’s interpretation of 42 U.S.C. Section 1983, commonly known as Section 1983, which provides a basis for people to sue public officials who violate a person’s constitutional rights.

However, under the Supreme Court’s current interpretation of the law, it isn’t enough to show that the rights are violated. Victims must also show that the action was “clearly established,” and if they fail, the official could be granted qualified immunity.

Amid nationwide protests calling for police accountability in the wake of Floyd’s death, lawmakers and scholars called on the Supreme Court to revisit the doctrine with the purpose of either limiting or ending its operation.

Legal experts say qualified immunity has routinely shielded those who are either incompetent or who knowingly violate the law, such as when courts granted immunity to officers who stole more than $225,000 (pdf) and to an officer who shot a 10-year-old child while trying to shoot a non-threatening family dog (pdf).

But the nation’s top court has so far refused to do so. On June 15, the Supreme Court declined to hear eight major cases (pdf) that presented opportunities for the justices to reconsider the doctrine.

The senators’ Ending Qualified Immunity bill is the companion measure to the House’s version, with the same name, introduced in early June by Reps. Justin Amash (L-Mich.) and Ayanna Pressley (D-Mass.). The bill codifies that the qualified immunity doctrine can’t be used as a grounds of defense against a misconduct suit under Section 1983.

“At a time when unprecedented numbers of people are demanding an end to police murder, brutality, and impunity, we have got to finally abolish ‘qualified immunity’,” Sanders said in a statement. “This is not a radical idea: Police officers must be held fully accountable for abuses they commit—no one is above the law. If we are serious about real police reform, the Senate has got to pass our Ending Qualified Immunity Act.”

Similar bills have been introduced by other members of Congress. Sen. Mike Braun (R-Ind.) introduced the Reforming Qualified Immunity Act in June that limits some of the protections for public officers from civil lawsuits, making it harder for police officers to claim the immunity. Braun’s bill has faced pushback from police groups and unions.

The Indiana State Police Alliance said in a statement on June 30 that they weren’t contacted for consultation during the development of the bill, adding that they oppose abolishing qualified immunity for law enforcement.

“The protection aids officers in carrying out their duties and obligations to serve the public and enforce the law. While there is no doubt that bad actors have brought this issue to the forefront, we believe qualified immunity serves to protect all police officers legitimately performing their duties, and it allows the public to recover damages in cases where a police officer has violated the person’s rights,” reads the statement, which was signed by the group’s president, Scott Krueger, and executive director, Cory Martin.