Abolishing qualified immunity.

It's now the main sticking point in reform negotiations.
Isaac Saul May 24, 2021
I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can read Tangle for free or subscribe for Friday editions, and you can reach me anytime by replying to this email. If someone sent you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 11 minutes.

We’re covering the debate over qualified immunity. Plus, a question about maintaining hope in America and a troubling, important story about opioid overdoses.

March and protests following the murder of George Floyd. Thousands of peaceful, masked citizens turned up to this POC student organized march from Mission High School to Mission Police Station. Photo: Eddie Codel / Flickr

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Reader feedback.

Last week, in arguing that Roe v. Wade should remain intact, and attacking arguments that the Constitution doesn’t protect the right to an abortion, I wrote that “The original Constitution didn’t grant women a right to vote either.” Paul from Minneapolis, who works in the pro-life movement, wrote in to criticize this point.

“Yes,” he said of women not having the right to vote, “and that's why it was important that we amended the Constitution to correct that. But the American people have never amended the Constitution to implement a right to abortion. To pretend that there is a constitutional right to abortion isn't just false but absurd -- abortion was explicitly rejected by many of the same people who adopted the 14th Amendment (where Roe derived its alleged right) when state legislatures enacted a wave of laws protecting the unborn during the same era in which they agreed to the Amendment. One can argue that the Constitution should be amended, as it was with the right to vote; one can argue that such an amendment is what justice requires. But that's different from claiming that the Constitution currently includes a right to abortion. It doesn't.”

You can read Paul’s entire rebuttal, which I have published in a Google document, here. A brief reminder: I share reader feedback when I find it is a valuable and fair criticism on my own “take” or something published in the newsletter. It’s part of my goal to ensure I’m giving voice to views across the political spectrum. You reach me anytime by replying to the newsletter. I try to reply to every email, and I always read each one.


Quick hits.

  1. President Biden offered a compromise to Republicans on his infrastructure plan, lowering the overall cost from $2.3 trillion to $1.7 trillion. (CNBC)
  2. Former presidential and Senate candidate Beto O’Rourke is considering a run for Texas governor. (Associated Press)
  3. Three researchers from China’s Wuhan Institute of Virology were admitted to a hospital in November of 2019, adding weight to calls for a fuller probe of whether coronavirus escaped from the laboratory. (Wall Street Journal)
  4. Aleksandr G. Lukashenko, the strongman leader of Belarus, provoked international outrage after he sent a fighter jet to intercept a European airliner in order to detain a prominent opposition journalist who was aboard the flight. (The New York Times, subscription)
  5. A spate of anti-Jewish attacks across the U.S. is prompting lawmakers to take steps to quell antisemitic violence. (The Washington Post, subscription)

What D.C. is talking about.

Qualified immunity. As members of Congress debate how to proceed on police reform, qualified immunity has become a sticking point. The legal doctrine protects government officials from lawsuits alleging that the official violated a plaintiff’s rights. It does this by only allowing lawsuits where a “clearly established” statutory or constitutional right was violated. Because the point of qualified immunity is to protect defendants from the costs of trial, courts often determine whether a hypothetical, reasonable official would know they were violating someone’s rights at the outset of a trial. Qualified immunity only applies to government officials being sued as individuals, not suits against the government for damages caused by an official’s actions.

In practice, this means when someone brings a civil suit against a police officer for violating their constitutional rights, they have to demonstrate their rights being clearly established by previous rulings in the Supreme Court or the jurisdiction where their case is being considered. The result, in many cases, has been an extraordinarily high bar to bring a successful civil suit against officers for egregious behavior.

In one example, officers who allowed their police dog to attack a prone, non-resisting suspect escaped prosecution because there was no previous case with an identical set of circumstances. The same thing happened in cases brought against police who stole $225,000 from a suspect and a prison guard who pepper sprayed an inmate for no discernable reason.

Qualified immunity does not just apply to police, but to all government officials, and was established in 1982 to protect those officials from an onslaught of frivolous lawsuits. It was meant to balance holding public officials accountable with keeping them from being inundated with harassment that prevents them from doing their jobs.

Now, as Congress debates the George Floyd Justice in Policing Act, 10 progressives have signed a letter to Congressional leaders saying that abolishing qualified immunity is a must-have in any police reform legislation. Meanwhile, House Majority Whip James E. Clyburn (D-SC) has said he’d be willing to support a police reform bill even if it didn’t end qualified immunity. And it’s not a clean partisan divide the other side of the aisle, either: there are some Republicans who support qualified immunity and some who oppose it.

While the progressive members of Congress who are demanding an end to qualified immunity did not threaten to tank police reform efforts, it’s clear it has become a central issue in the discussion. Today, we’re going to examine some arguments from the right and left about how to navigate this legal doctrine.


What the right is saying.

The right is divided on qualified immunity, with some arguing to end it while others say it’s critical to helping police do their jobs (and protecting officials from a deluge of bad-faith lawsuits).

In The Hill, Republican Rep. Jim Banks (R-IN) said Democrats and Republicans have common ground on police reform: “Both Democrats and Republicans included provisions to ban chokeholds, limit no-knock warrants, limit the use of force, promote body cameras and make lynching a federal crime.

“There was just one major difference between our proposals: Democrats wanted to strip law enforcement of their qualified immunity protection,” he said. “But removing qualified immunity is a non-starter for Republicans because it would result in subjecting police officers to an endless loop of meaningless lawsuits and distractions that would keep them off the streets pursuing criminals. In effect, removing qualified immunity protections would ‘defund the police’ because officers would have to spend their income paying for legal defense on frivolous lawsuits. I felt so strongly that qualified immunity remain intact for our law enforcement agents I introduced a bill to permanently codify qualified immunity. No matter how urgently we argued, Democrats refused to back down, and nothing came of our efforts…

“If we’re going to demand police officers take extra steps to practice safer policing, we must be able to provide them the guarantee of legal immunity from criminals who want to sue them for doing their job,” he wrote. “The best way to communicate to our police officers that we appreciate the sacrifices they make for our safety is to provide them legal immunity from being sued or harassed when they are following the rules and doing their job by the book. If Democrats truly want to pass a real police reform bill, this [is] a measure they need to accept as part of any broader legislative package.”

In 2020, Jeffrey Rosen wrote a piece defending qualified immunity in the New York Post, asserting that it’s only keeping officers from civil lawsuits — not preventing criminal accountability.

“Qualified immunity is not a get-out-of-jail-free card for abusive policing,” he wrote. “Criminal charges already can be — and are — brought against cops who break the law. The Department of Justice vigorously investigates and prosecutes allegations against officers, including excessive-force cases. Since 2009, the DOJ has charged more than 700 law-enforcement officials for willfully violating civil rights or for breaking related laws. Officers know that, with or without qualified immunity in civil cases, they can be criminally charged, lose their jobs and go to prison if they break the law.”

If qualified immunity were abolished, he argued, “Trial lawyers would rub their hands; the public wouldn’t benefit. About 85 percent of law enforcers are state and local. A recent study of 44 of the largest US law-enforcement agencies found that even with qualified immunity, state and local governments pay 99.98 percent of the settlements and judgments that plaintiffs recover in lawsuits where qualified immunity potentially might apply. In 2018 alone, the four largest city police departments in the United States — those in New York, LA, Chicago and Philadelphia — paid $397.7 million in settlements and judgments, despite the benefit of qualified immunity. If they have their way, anti-qualified-immunity activists would have those already-huge costs skyrocket.”

Conservative commentator David French has called for abolishing qualified immunity, writing that the considerable consensus across political lines speaks volumes in favor of it: “When the Alliance Defending Freedom, the American Civil Liberties Union Foundation, the Second Amendment Foundation, the Reason Foundation, the National Police Accountability Project, and Public Justice (among others) join hands, we’re approaching the ‘dogs and cats, living together’ phase of the judicial apocalypse,” he said.

“The entire notion of ‘clearly established law’ rests on a series of absurd, fantastical premises,” French wrote. “Are we really to believe that a police officer doesn’t know he shouldn’t pound on the wrong door and blow away the innocent occupant unless a court said so in a case, say, five years before? Do we really believe police officers and university administrators are diligently reading such cases as they are decided anyhow?… Among the many powerful points that ADF, the ACLU, and their allies make in their brief is the link between the culture of impunity created by qualified immunity and the loss of public trust in American institutions. In part because of qualified immunity, public officials in this nation often have greater financial incentives to keep sidewalks repaired than they do to preserve the fundamental, unalienable rights that their government was created to preserve.”


What the left is saying.

The left supports ending qualified immunity, though some say it shouldn’t hold up broader police reform legislation.

For all the relief over the Derek Chauvin jury, The New York Times editorial board said, “Had Mr. Chauvin not been criminally prosecuted — as the vast majority of police who kill in the line of duty are not — he may well have faced no consequences at all.” And that’s thanks to qualified immunity.

“Examples of courts splitting hairs to give a pass to even egregious misconduct abound: the prison guard who pepper-sprayed an inmate in the face ‘for no reason at all’; the officer who fired at a nonthreatening dog and missed, accidentally hitting a 10-year-old child lying nearby on the ground; the officers who stole $225,000 in cash and rare coins while executing a search warrant; the officer who shot a 14-year-old boy after he had dropped a BB gun and raised his hands,” it wrote.

“The Supreme Court has justified its creation by arguing that officials need ‘breathing room’ to make ‘reasonable but mistaken judgments about open legal questions’ That’s true, but the police already enjoy many protections for their actions, especially in situations where they make split-second decisions,” the board said. “The court has also expressed the concern that individual cops will be bankrupted by judgments. This simply doesn’t happen. To the contrary, governments virtually always foot the bill for police wrongdoing. One study found that officers personally paid only .02 percent of the dollars that plaintiffs were awarded.”

The New Jersey Star-Ledger editorial board said “it’s time to end qualified immunity.”

“Imagine if you couldn’t sue your surgeon because no doctor had ever mistakenly left a sponge in the exact same place,” the board wrote. “Other high-stakes professions that require split-second decisions don’t have this sort of blanket immunity, notes Karen Thompson, a lawyer with the ACLU; like a doctor doing open heart surgery, or an obstetrician handling a risky birth. Cops should be no different.”

“Today, the state’s largest police union argues that judges in New Jersey would never dismiss a case of egregious abuse because of qualified immunity, and that ending this protection would only mean a decent cop could get sued for all he’s worth,” the board added. “Yes, good cops need protection, and under the law, they have it. An officer who makes an innocent mistake in good faith is protected from paying damages in civil court, with or without this proposed change. No jury would convict a cop like that. Qualified immunity cuts these cases short, leading to their dismissal before a jury can even hear the evidence. For a bad cop, that’s a free pass that can only encourage brutal behavior.”

In Lawfare Blog, Paul Stern suggested a compromise: keeping immunity for individual officers for cases around constitutional violations, where damages can be sought from the state of municipality, but permitting claims against officers when a plaintiff can “plead facts sufficient to warrant punitive damages.”

“From an analytical standpoint, remedies aimed at the department or agency level may better incentivize governments to implement best practices, evaluate substandard employees and modify past missteps,” he wrote. “If the purpose of these civil actions is to prevent future misconduct, targeting damages at the agency level, rather than the individual, promotes greater structural reform aimed to ensure best practices and training techniques. Systemic problems require institutional reform. A police officer’s contact with an individual is often a manifestation of several prior decisions along a criminal justice continuum. Deterrence, in that sense, is concerned not only with point-of-contact interactions between law enforcement officers and citizens but also with leveraging governmental mechanisms to achieve structural reform.

“So where does this leave accountability for the individual officer?” he asked. “To completely abolish qualified immunity would be to remove any analysis of culpability of the individual and instead make officers strictly liable for constitutional infractions. At the same time, officers currently tend to enjoy too great of a shield, regardless of whether their actions were negligent, intentional or even malicious.”


My take.

I’ve shown my cards on this issue in past writing, where I’ve advocated forcefully for ending qualified immunity. As some of the commentators above noted, this is an issue that has forged a surprising bipartisan consensus from established advocacy groups that are in the business of understanding how these laws impact their invested parties — which is a telling sign of how far-reaching qualified immunity has been in its deleterious impact on society writ large.

To me, all that really matters here is the practicality of how qualified immunity has been applied. Police have successfully avoided civil suits for a range of despicable, egregious, and very obvious violations of constitutional rights. This doctrine was created by judges and can be ended by them — and it should be, because police (and government officials generally) shouldn’t be rewarded for finding novel ways to violate someone’s constitutional rights. Absent the Supreme Court reconsidering qualified immunity, which it seems shy to take on despite criticism from justices across the bench, legislation would be a great solution.

And yet, there’s a more interesting question here. With my position that we should end qualified immunity already out there, it’s also worth asking whether rejecting broader and separate reforms is worth it for the aim of rescinding qualified immunity? The progressive activists who penned a letter insisting on its inclusion in a reform bill did not pledge to hold out votes — but they might.

On that issue, I’m less sure of how to proceed. Sen. Tim Scott (R-SC) offered a meaningful compromise in his bill, which would give victims of police misconduct the ability to sue their local departments or municipalities but not the individual officers. It isn’t perfect, but given that municipalities pay over 99 percent of judgments against bad cops anyway, would I take a bill that leveled up the accountability of local departments — along with ending no-knock warrants, limiting use of force, banning chokeholds and increasing the use of body cameras? Yes. I would.

There’s also the fact that qualified immunity is being attacked at the state level, too, which is a good thing for the public. Colorado, Connecticut and New Mexico have all passed laws that limit or end qualified immunity in some cases involving police officers. Again: they aren’t perfect solutions, but they are steps in the right direction.

The country seems to be pining for movement, and it’d be a tough line to hold for progressive Democrats to reject a consensus reform bill that didn’t address qualified immunity. Given the priority I think it is, I’d admire their gumption, but the likely outcome — a stalemate where no reform bill becomes law — would be a loss for everyone. On the other hand, if they successfully called a bluff and established a legislative takedown of qualified immunity, it’d end up being one of the most significant actions this Congress has taken.


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Your questions, answered.

Q: What keeps you doing what you're doing? For example, after you objectively debunked every possible claim of election fraud, and it has been shown from every logical perspective imaginable that there is zero evidence that anything beyond the normal negligible percentage of fraud occurred, yet 70% or something like that of Republicans still believe Trump's big lie, how do you keep yourself from giving up on humanity?

— Anonymous, Sante Fe, New Mexico

Tangle: While I appreciate the compliment, I certainly haven’t objectively debunked every possible claim of widespread election fraud. I’ve covered a lot of them, but there are more than I can possibly tackle, and there’s new alleged “evidence” coming out every day, however silly or ill-informed I think many of the claims are.

To the thrust of your question, though, part of writing in the political space — and writing this newsletter more generally — is that sometimes you’re screaming into the void, sometimes people are going to misconstrue your arguments, and sometimes your writing will have a minimal impact (or no impact at all).

Truthfully, though, my goal here isn’t to change hearts or minds. Like most humans, I love when I can move someone who disagrees with me closer to my position. But the reward for me is simply that so many people are willing to read this newsletter, engage with views they don’t agree with, and have some civil arguments. Check out the comments section of Tangle articles on abortion or Israel and Palestine (comments are for subscribers only, so subscribe!) and you’ll see respectful, reasonable, good-faith arguments about issues. That’s usually what my inbox looks like, too, and it’s why I love this work so much — and how I keep myself from “giving up on humanity” — even when the country as a whole may be embracing some beliefs that concern me deeply.

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A story that matters.

New reports on opioid deaths in D.C., Maryland and Virginia show a massive spike during the year 2020. Fatal opioid overdoses were up 46 percent in D.C. in 2020, up 47 percent in Virginia, and up 19 percent in Maryland, according to preliminary data. Experts say this local look at the increase in opioid fatalities during the pandemic will track with a larger, national trend when that data becomes available. Some researchers are predicting at least a 27 percent jump in overdoses in nationwide data compared to 2019, something addiction experts say is a result of the pandemic, which left many people “isolated from treatment as well as family and friends even as jobs dried up and schooling went online.” The Washington Post has the story.


Numbers.

  • 35%. The percentage of Americans who believe the 2020 racial justice protests had a positive impact on society.
  • 59%. The percentage of Americans who believe the country needs to continue making changes to grant Black Americans equal rights with white Americans.
  • 23%. The percentage of Americans who agree with the statement “America is not a racist country.”
  • 13%. The percentage of Americans who believe the treatment of Black Americans by police improved in the last year.
  • 35%. The percentage of Americans who believe the treatment of Black Americans by police got worse in the last year.
  • 51%. The percentage of Americans who believe the treatment of Black Americans by police has gone unchanged in the last year.

Don’t forget.

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Have a nice day.

A new search engine service is planting trees every time someone uses their service. Ecosia earns money from pay-per-click ads that appear alongside search engine results. But Ecosia dedicates a share of the revenue generated from those ads to planting trees across the planet. Right now, with its current model, it plants one tree for every 45 searches on its search engine. So far, it’s planted more than 125 million trees across the globe. In April alone, the company earned 2.25 million Euros, and nearly half of that revenue — about 80 percent of its profit — was used to plant 7 million more trees. (Business Insider)

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Isaac Saul

I'm a politics reporter who grew up in Buck County, PA — one of the most politically divisive counties in America. I'm trying to fix the way we consume political news.

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