A civil society only exists to the extent those entrusted with authority reflect the interests of the individuals governed. Breakdowns in this social contract can quickly unravel the fabric of democracy.
Today we are witness to inklings of this very sort of unrest. The protests following George Floyd’s death are reminiscent of the fallout from Michael Brown’s death in 2014 and should serve as a warning to lawmakers that future turmoil is all but certain if Congress does not act.
Multiple police reform proposals are being considered, but one stands apart from the rest. Reforms to “qualified immunity” – a legal doctrine that shields police from liability – would correct the standard upon which police officers benchmark their behavior. Because it affects the underlying legal structure, it captures the full spectrum of blind spots embedded in the law enforcement system. Other proposals, while useful, would only amount to window dressing without also addressing qualified immunity.
Federal law currently provides recourse to citizens whose constitutional rights are violated by police officers. Citizens have the right to sue the police for civil damages in instances of excessive force or unwarranted search and seizure, for example. Ostensibly, this provides the path to justice that protestors are demanding. Yet, this law has little practical impact.
Beginning in 1967 and expanded in subsequent rulings, the Supreme Court carved out a protection for police officers that was not found in the text of the law. This catch-all defense called ‘qualified immunity’ renders federal law hollow by making it so hard to reach the legal threshold to hold police officers accountable that justice for citizens is often unattainable in any practical sense.
Congressional police reform bills must include changes to qualified immunity for two reasons.
First, we must ensure those who enforce the law are also subject to it. As it stands, qualified immunity creates a moral hazard whereby police officers are protected from the risks otherwise incurred by violating the law. No individual in a democracy should be without accountability, especially those entrusted with lethal power.
Reforming qualified immunity does not assume police officers are racist or corrupt – the same way that speed limits don’t assume every driver is a racing addict. It simply provides consequences for unconstitutional and illegal actions. Removing the moral hazard simply adds back the deterrent needed to prevent actions that would violate constitutional rights.
Police departments would understandably not be in favor of the change. At its core, reforming qualified immunity is an act of accountability, and human nature does not readily relinquish power. But the reform is also a goal worthy of our society’s vision of law enforcement that exists to protect and serve.
Secondly, reforming qualified immunity restores Congress as the rightful author of the law. A healthy democracy demands that laws originate in the Legislative Branch, which proportionately represents those it governs and can respond accordingly in times like these. The Supreme Court, while indispensable in its own right, is bound to interpreting congressional laws but precluded from writing them. When it instead authors judicially-created doctrines, such as qualified immunity, it is up to Congress to take back the reins.
Senator Mike Braun (R-IN) introduced a bill that would effectively reform qualified immunity in a manner that respects the concerns of both parties. It would remove the all-encompassing defense of acting in “good faith” and instead only allow officers to claim qualified immunity in two narrow instances – if the action is already authorized by or found to be consistent with existing law or regulation. Senator Braun hopes to have his proposal considered soon, but the Senate failed to garner enough support to begin debate on a broader police reform package offered by Senator Tim Scott’s (R-SC) that would have allowed amendments, such as Braun’s bill, to be considered.
There are many ways to improve policing, but reforming qualified immunity is the lynchpin – both practically and politically – in dismantling structural policing problems. The conflict at hand is an opportunity for our democracy to show its strength by restoring institutional checks and balances and overhauling its laws to ensure constitutional rights are guaranteed for every American. Only then can we restore the accountability necessary to repair the social contract upon which our democracy is built.