As Americans’ desire for police reform — as evidenced in a recent Gallup poll — continues to grow, politicians are increasingly debating the issue.
Often, the topic of “qualified immunity” is brought up as an area in need of reform when it comes to policing. But what exactly is qualified immunity, and how does it fit into the law enforcement puzzle?
Here’s what you need to know.
What is qualified immunity?
The Supreme Court created the concept of “qualified immunity” — as it pertains now to police — in the early 1980s as a means of protecting civil servants from being sued and held personally responsible for actions that violated a person’s constitutional rights, unless a court ruled those actions were “clearly established” and deemed unconstitutional.
According to the Institute for Justice, “qualified immunity was established in Harlow v. Fitzgerald, a case that had absolutely nothing to do with law enforcement.”
“It was brought by a whistleblower who wanted to sue Nixon White House aides for punishing him because he spoke out against a Pentagon weapons program. In Harlow, the Supreme Court made all government workers immune from constitutional liability by default,” the think thank’s website states.
How does qualified immunity work?
If a person decides to bring a lawsuit against a civil servant, the plaintiff has to prove he or she fell victim to an action that was previously deemed unconstitutional and/or illegal. If a court did not deem the action unconstitutional or illegal, qualified immunity immediately comes into play and protects the civil servant. In this case, qualified immunity protects law enforcement officers from any actions that have not been deemed unconstitutional or illegal in the past.
The American Bar Association (ABA) says qualified immunity falls under the “culture of near-zero accountability.” “Under this doctrine, government agents — including but not limited to police officers — can never be sued for violating someone’s civil rights, unless they violated ‘clearly established law,'” the ABA’s website states. “While this is an amorphous, malleable standard, it generally requires civil rights plaintiffs to show not just a clear legal rule, but a prior case with functionally identical facts.”
“In other words, it is entirely possible—and quite common—for courts to hold that government agents did violate someone’s rights, but that the victim has no legal remedy, simply because that precise sort of misconduct had not occurred in past cases,” the ABA says.
These protections for qualified immunity are only in place for civil lawsuits, not criminal prosecutions.
Why is qualified immunity controversial?
The Left and the Right disagree on qualified immunity for a number of reasons.
Politicians on the Left say qualified immunity prevents police officers and other members of law enforcement from being held accountable for their actions. Qualified immunity prevents some families from suing individual officers when their loved ones fall victim to police brutality or excessive force, especially if the officer’s actions were not already clearly defined as illegal or unconstitutional.
The Right argues that without qualified immunity, law enforcement agencies would have a difficult time recruiting officers. The argument is officers would be reluctant to do their job without the fear of being wrongfully sued in a personal capacity.
Is there room for compromise?
While the Left wants to completely do away with qualified immunity, Sen. Tim Scott (R-SC) believes he has a middle ground that both sides could compromise on. Under his plan – which Democrats roadblocked last fall – plaintiffs could bring lawsuits against specific police departments and law enforcement agencies, not individual officers.
“There is a way to put more of the onus or the burden on the department or on the employer than on the employee. I think that is a logical step forward, and one that as I’ve spoken with Karen Bass over the last several weeks, it’s something that the Democrats are quite receptive to,” Scott told reporters last week, according to CBS News.
Scott, who is leading the GOP delegation on police reform, is currently in talks with Congresswoman Karen Bass (D-CA), the Democrats’ point person on this issue, about a bipartisan bill. Bass said “there’s a lot of room for discussion” around the idea of qualified immunity.
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Beth Baumann is a Political Reporter and Editor at The Daily Wire. Follow her on Twitter @eb454.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.