Qualified Immunity Is Still the Key to Real Police Reform

Clark Neily

As we approach the one‐​year anniversary of George Floyd’s murder by Minneapolis police, Congress stands at a crossroads: It can deliver the real reform it has repeatedly promised by overhauling qualified immunity, or it can settle for a package of largely meaningless window dressing that leaves untouched our indefensible policy of near‐​zero accountability for police. From a purely policy standpoint, the choice is a no‐​brainer. As explained below, it’s good politics as well.

To briefly recap, there is bipartisan agreement that American policing stands in desperate need of reform, particularly with respect to excessive force, racial disparities, and accountability. Acknowledging the ongoing crisis of public confidence in police, Congress has spent the past year working to identify key problems and assessing proposed solutions. In the course of those discussions, a single issue has come to predominate: qualified immunity.

Qualified immunity is a judge‐​made defense that enables police and other government officials to escape liability for violating people’s rights unless there happens to be a preexisting case with nearly identical facts in the relevant jurisdiction such that the misconduct at issue was “clearly established.” This has enabled cops to escape liability for everything from stealing property while executing a search warrant to savaging an unresisting suspect with a police dog. And while the Supreme Court could in theory fix the mess it made with its unwarranted foray into judicial policymaking, that seems increasingly unlikely. Thus, it is up to Congress to decide whether to fulfill the promise of our nation’s preeminent civil rights law, colloquially referred to as “Section 1983,” which provides that state actors “shall be liable to the person injured” for the deprivation of any right—not merely those the judiciary deems “clearly established.”

To their immense credit, a diverse array of legislators have recognized the pathology of qualified immunity and have remained laser‐​focused on the need to repeal or substantially reform it in order to ensure proper police accountability. Not surprisingly, some members of law enforcement recoil at the prospect of real accountability and have deployed a number of strategies to defeat the push to overhaul qualified immunity. Essentially, those strategies involve a proposal to offer up an attractive basket of largely meaningless window dressing in exchange for kicking the qualified‐​immunity can down the road and leaving untouched our current policy if near‐​zero accountability for law enforcement. Policymakers should reject that offer and the baseless propaganda with which it has been promoted.

Perhaps the single greatest sticking point right now is the perception that the law‐​enforcement community is united in its opposition to qualified immunity reform. Not so. Indeed, just last week, the Major Cities Chiefs Association—an organization of 79 police chiefs, commissioners, and sheriffs representing the largest cities in the United States and Canada—released a statement that embraces a major overhaul to qualified immunity that would result in the elimination of the “clearly established law” standard and effectively gut the doctrine as a defense for rights‐​violating police. Adding the MCCA’s support for qualified‐​immunity reform to that of other police organizations, including the Law Enforcement Action Partnership and the National Organization of Black Law Enforcement Executives means that it is no longer possible to say that the law enforcement community is unanimous in its opposition. By contrast, civil rights organizations across the ideological spectrum—from the ACLU and NAACP Legal Defense Fund to the Second Amendment Foundation and Alliance Defending Freedom are united in seeking to ensure real accountability by repealing or substantially reforming qualified immunity. That confluence of support from civil‐​rights and law enforcement organizations ought to translate into 60 votes in the Senate.

Notably, some Members have expressed concern about the impending anniversary of George Floyd’s death on May 25 and a desire to have a piece of legislation that Congress can send to the Biden White House for review and comment. But the best way to honor George Floyd’s memory is not to meet some arbitrary deadline but instead to ensure the sort of genuine accountability that might have seen his killer, Derek Chauvin, removed from the police force before he murdered anyone.

As noted, the window dressing being proposed by members of the law‐​enforcement lobby in exchange for caving on qualified immunity may look pretty, but it will have little real‐​world impact and certainly won’t address the most significant sources of public disillusionment with police. And the reason for that is simple. If, as they have proposed, police agree to dial back chokeholds and no‐​knock raids but then simply disregard those new policies—as former NYPD officer Daniel Panteleo did when he killed Eric Garner with a forbidden chokehold—how are they going to be held accountable? Even the proposal to hold departments, rather than rights‐​violating police themselves, liable for misconduct falls short because it destroys individual incentives to respect people’s rights and prevents victims from seeking redress from the person who harmed them. That is simply not the way to revive public confidence in police and assure people that police will be held to (at least) the same standard of accountability as the rest of us.

Make no mistake—this is a time of crisis for American policing and for our criminal justice system writ large. To perform their vital functions properly, those institutions must have the confidence and support of the public. But they do not, nor, according to record numbers of Americans, have they earned it. This is not a time for half‐​measures, window dressing, or rearranging the chairs on the deck of the ship. Americans have made clear that they demand real reform and real accountability from police. Fortunately, the path to real accountability is short and simple—simply repeal the illegitimate, judge‐​made doctrine of qualified immunity and embrace the ineluctably clear text of Section 1983, which provides a federal remedy for the deprivation of any right.