More than a year after George Floyd was tragically murdered, Congress may soon have a bill that could overhaul American policing. After months of backdoor negotiations spearheaded by Cory Booker, D-N.J., a draft version of their proposed legislation was leaked recently.
Wisely, this compromise reform bill would tackle government immunity, an overarching area of the law that makes it incredibly difficult to sue the government or its employees. By far the most well-known manifestation is qualified immunity, which shields any and all government employees – not just police – from legal liability unless they violated a “clearly established” right.
Under a policing reform omnibus passed in March, the House of Representatives voted to end qualified immunity for law enforcement officers, though fierce opposition from Senate Republicans has made that particular reform a nonstarter.
Bipartisan legislation could reform qualified immunity
Sidestepping this issue, the draft from Booker would instead eliminate two other forms of government immunity.
First, their compromise bill would rectify employer liability. Thanks to a 1978 Supreme Court decision, Monell v. Department of Social Services, agencies and municipalities who employ police officers and other government workers cannot be held liable for their employees’ actions (like a private employer would), unless a victim can show the violation occurred due to an obvious lack of training or an agency’s policy or custom. In practice, this is an incredibly high bar that makes it very difficult to win a case against a public employer. Moreover, it also allows agencies to pin the blame on a convenient scapegoat without taking responsibility for systemic abuses.
Policing America: Qualified immunity divides lawmakers in police reform talks. What is that legal defense?
Explicitly overriding government immunity for cases involving law enforcement officers, the draft version would hold the public employer “liable to the party injured for the conduct of the officer … regardless of whether a policy or custom of the public employer caused the violation.” Though the bill would leave qualified immunity untouched – neither eliminating nor codifying the doctrine – it would nevertheless achieve practically the same results as the House version by ensuring that victims of constitutional violations do not get left out in the cold.
Under this compromise, individual officers would not be held personally liable, but this already happens, even when courts reject qualified immunity. Due to widespread indemnification policies, officers didn’t contribute a single cent in 99.59% of civil rights judgments and settlements, according to research by UCLA professor Joanna Schwartz. By addressing employer liability, the Senate compromise would provide an additional path to hold law enforcement accountable, ensure that victims can be properly compensated and guarantee that individual officers won’t be exposed to any new financial liability.
A police car in a suburb of Los Angeles in February 2021. (Photo: Ashley Landis / AP)
Second, the draft bill would finally close an appalling loophole in civil rights law. Federal workers, whether they’re employed by the Federal Bureau of Prisons, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration or the Border Patrol generally can’t be sued for constitutional violations, even when qualified immunity is unavailable.
Qualified immunity is a threat to social justice
Consider José Oliva, a Vietnam War veteran who was brutally choked and attacked in a Veterans Affairs hospital in El Paso, Texas. At first, a district court sided with Oliva and even denied qualified immunity to the federal officers. But his lawsuit was tossed on appeal last September, after the 5th U.S. Circuit Court of Appeals ruled that, because the officers who beat him work for the federal – rather than state – government, his constitutional claims could not proceed.
In a fiery opinion this March, Judge Don Willett, a Trump appointee, blasted the ruling for “allowing federal officials to operate in something resembling a Constitution-free zone.”
“If you wear a federal badge, you can inflict excessive force on someone with little fear of liability,” he added. “It certainly smacks of self-dealing when Congress subjects state and local officials to money damages for violating the Constitution but gives a pass to rogue federal officials who do the same.” This “rights-without-remedies regime” for federal officers “seems innately unjust,” Judge Willett wrote.
The Oliva Case: Supreme Court dodges cases on police liability, declining to hear excessive force claims
To end this self-dealing, the draft bill would amend Section 1983, which authorizes civil rights lawsuits against state and local officials, to expressly include federal agents, too. Such a relatively minor tweak – a mere four words in the draft – would trigger a monumental shift in constitutional accountability. If enacted, victims like Oliva would no longer helplessly watch as their cases get thrown out simply because they had the bad luck of being assaulted by federal, rather than state, police.
Together, these two reforms would provide a powerful incentive for law enforcement agencies to respect people’s constitutional rights and to target the proverbial “bad apples” before they spoil the rest of the force. Though other elements of the draft bill may be fractious, ending de facto immunity for cities, departments, states and federal agents merits bipartisan approval.
Anya Bidwell, Patrick Jaicomo and Nick Sibilla work at the Institute for Justice, which represents José Oliva.
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