Anya Bidwell · June 16, 2020

Following the police killings of George Floyd and Breonna Taylor, a nationwide movement for accountability and equality has found cross-ideological agreement that policing must change. At the forefront of this movement are proposals to abolish qualified immunity, the legal doctrine invented by the Supreme Court in 1982 that shields police and all other government officials from civil liability when they violate the Constitution. But to actually restore accountability, any proposal to end qualified immunity must apply equally to state, local, and federal officials.

With the Supreme Court refusing to reconsider the doctrine—and leaving in place outrageous circuit court opinions protecting police from intentional and reckless conduct—proposed legislative solutions are more important than ever. In recent weeks, lawmakers have reached across the aisle to introduce legislation to end qualified immunity. Currently there are two bills circulating in Congress—one introduced by Reps. Justin Amash and Ayanna Pressley, and one by Rep. Karen Bass, Sens. Cory Booker and Kamala Harris, and Rep. Jerrold Nadler. Although both bills would be a step in the right direction, both have a glaring flaw: they restore constitutional accountability to state police. Federal police are exempted entirely.

“Qualified immunity allows both state and federal officers to sidestep the Constitution. But the bills currently on the table only remove immunity for state officers, meaning that federal officers can continue to violate the Constitution without consequence,” said Institute for Justice attorney Anya Bidwell. “A world with some accountability is better than one with none. But Congress should apply the Constitution to federal police and state police alike. No one should be above the law,” added Patrick Jaicomo, also a lawyer with IJ.

As many Americans have learned during the recent Black Lives Matter protests, the U.S. government employs a substantial number of police, ready to be deployed at a moment’s notice.  Since 2001, the ranks of federal law enforcement have been steadily increasing, with approximately 2,500 federal officers being added every year.

Moreover, if qualified immunity is still available to federal officers, it will incentivize a further proliferation of joint task forces staffed by both state and federal police. This murky cooperative format allows officers to pick and choose the rules and powers that are most favorable to them. About a thousand joint task forces operate nationwide, granting their members—often local officers cross-sworn as federal marshals—special protections. In a world where qualified immunity no longer shields those acting under a color of state law, membership on a joint task force would provide state officers with an option to avail themselves of the various special protections afforded federal officers, among them qualified immunity.

“This simply goes to show that it is just as important to remove qualified immunity as a barrier to recovery against federal officers as it is against state officers,” said Jaba Tsitsuashvili, an attorney with the Institute for Justice.

“Congress must make it clear that the Constitution applies to federal officers as much as it applies to state officers,” said Scott Bullock, IJ’s president and general counsel. “Unless there is a clear, universal rule on immunity, there is no promise of accountability for violations of constitutional rights.”