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Some States Moving on ‘Qualified Immunity’ Reform

But Republicans have blocked congressional action, despite popular support for reform.
by Dan King
March 30, 2021
Featured Image
Police officers pepper spray a woman next to the Colorado State Capitol as protests against the death of George Floyd continue for a third night on May 30, 2020 in Denver, Colorado. (Photo by Michael Ciaglo/Getty Images)

During last summer’s protests against police brutality, one policy prescription that was often proposed by activists was ending the legal doctrine of qualified immunity. A year later, nothing has changed in Congress, but state lawmakers and the judiciary are starting to pick up the slack.

Qualified immunity—which was created by the Supreme Court with its 1982 ruling in Harlow v. Fitzgerald—essentially shields government employees from being held civilly liable for violating someone’s constitutional rights when acting within the “color of the law,” unless that right is “clearly established” in a previous case. While that may sound reasonable in theory, the “clearly established” rule has protected plenty of officers whose actions would be deemed unreasonable by any Average Joe. For example, qualified immunity has been granted to a police officer who pepper-sprayed a protester in the face so badly that her contact lenses were “fused” to her eyes, officers who handcuffed a pregnant woman face down on the concrete and tased her three times over a speeding ticket, and prison guards who locked a naked prisoner in a cell full of feces. There are countless other horror stories one can find with a simple Google search of “qualified immunity.”

On March 17, the New Mexico State Senate passed the New Mexico Civil Rights Act, one of the strongest rebukes of qualified immunity ever. The state’s House of Representatives, which had passed a modestly different version of the bill in February, concurred with the Senate’s version and sent the legislation to Gov. Michelle Lujan Grisham’s desk. If she signs it into law, New Mexico would become the second state to outlaw qualified immunity.

Last year, Colorado became the first state to end qualified immunity, when Gov. Jared Polis—like Gov. Lujan Grisham, a Democrat—signed a sweeping police-reform package into law. However, the Colorado law only applies to state “peace officers.” New Mexico’s bill goes even further by prohibiting qualified immunity as a legal defense for any state or local government employee (with the exception of employees of certain entities involved in land or water use and conservation). Connecticut also passed a qualified immunity reform bill last year, but that legislation fell well short of full qualified immunity abolition.

Other recent developments: Last Thursday, New York City became the first U.S. city to outlaw qualified immunity, and a bill to end qualified immunity passed the Illinois House Restorative Justice Committee. Lawmakers in Florida are also considering qualified immunity reform.

The judicial branch is also pushing back on qualified immunity claims. Earlier this month, for example, a federal judge in Texas dismissed an attempt by Castle Hills, a suburb of San Antonio, to throw out a case against the city, its mayor, and its police chief. City officials argued that they should be granted qualified immunity after they were accused of putting a member of the city council in jail for possession of a petition criticizing the city manager—a clear violation of her First Amendment rights. Thankfully, Judge David Alan Ezra saw through this bizarre claim and allowed Sylvia Gonzalez’s case against the city to move forward. Further, the Supreme Court has also intimated in recent weeks that it is open to revisiting qualified immunity.

While reforms are being considered or made in statehouses and courtrooms across the country, they’ve been stonewalled in the halls of Congress by Republican lawmakers. Last year, then-Rep. Justin Amash (L-Mich.) introduced a qualified immunity repeal bill, and was only able to get one Republican cosponsor, Rep. Tom McClintock of California. Around that same time, Indiana Republican Sen. Mike Braun introduced his own watered-down qualified immunity bill, but quickly abandoned it after he struggled mightily to defend the legislation on Tucker Carlson’s show. Even Republican lawmakers who have been supportive of some other criminal-justice reforms have voiced stern opposition to abolishing qualified immunity. Last year, South Carolina Republican Sen. Tim Scott called ending qualified immunity a “poison pill.”

The hypocrisy of a party that is supposed to hate “judicial activism” and “judge-made laws” routinely defending qualified immunity, which was invented out of whole cloth, is baffling. Republican lawmakers often say they’re trying to protect law enforcement and other government officials from frivolous lawsuits that would ruin the officer’s livelihood. But data collected by UCLA researcher Joanna Schwartz shows that in the rare cases where a complainant is able to show a “clearly established” right was violated and get past a qualified immunity claim, the individual officer only contributes to the payment 0.41 percent of the time, and when they do pay it’s less than 0.02 percent of the total payment. To put that in context, in a settlement reached with George Floyd’s family earlier this month, the city of Minneapolis, agreed to pay $27 million—apparently the largest settlement payment arising from a police misconduct suit in U.S. history. Schwarz’s research suggests that, if an officer were made to pay in such a case, their payment would only be $5,400. The average police misconduct lawsuit ranges from $1 million to $6 million, which means an individual officer would be on the hook for only about $1,200—and that’s on the high end.

Outside of Congress, ending qualified immunity actually has broad support across the political spectrum. Organizations ranging from the Americans Civil Liberties Union to the Second Amendment Foundation support reform. Further, a Cato/YouGov poll from last July found that 63 percent of Americans support eliminating qualified immunity altogether.

Ending qualified immunity at the federal level is crucial for true accountability and justice, but until the time comes that Congress catches up to the American public on this issue, state reforms are the next best thing.

Dan King

Dan King is a senior contributor at Young Voices, where he covers civil liberties and criminal justice reform. His work has appeared in Reason, the American Conservative, the Week, and the Weekly Standard.