J. Justin Wilson
J. Justin Wilson · June 25, 2020

In a historic vote, the U.S. House of Representatives voted on Thursday to pass the George Floyd Justice in Policing Act, which would end “qualified immunity” for state and local police officers as well as federal agents. Under qualified immunity, government officials can only be held liable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the officials are immune by default, even if they intentionally violated the law.

Created by the Supreme Court in 1982, qualified immunity appears nowhere in the Constitution or in the statute (Section 1983) that authorizes civil rights lawsuits against government agents. Thursday’s vote marks the first time in years that a chamber of Congress has voted to restrict qualified immunity under Section 1983.  

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said Institute for Justice Senior Attorney Robert McNamara. For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. It’s encouraging to see Congress is finally taking steps to fix this pernicious mistake by the Supreme Court.”

Long an obscure legal rule, qualified immunity—and calls for its removal or reform—has become increasingly prominent in the wake of the killing of George Floyd by Minneapolis police officers. Last week, the U.S. Supreme Court refused to hear eight separate cases that involved qualified immunity. Justice Clarence Thomas was the only justice who dissented from this refusal, writing that he has “strong doubts” about the doctrine. 

Although several Senate Republicans (along with President Trump) have called ending qualified immunity a “non-starter,” one of their colleagues has offered a compromise between full abolition and preserving the abusive status quo. 

On Tuesday, Sen. Mike Braun (R-IN) introduced the Reforming Qualified Immunity Act, which, unlike the Justice in Policing Act, would not completely eliminate qualified immunity. Instead, under the Braun bill, officers could only be shielded if their conduct was “specifically authorized or required” by federal or state law, or if a court had previously ruled that their conduct was constitutional. Critically, the Braun bill would not permit officers to use “clearly established law” as a defense, which has long shielded some of the doctrine’s most egregious abuses.

Sen. Braun’s bill is now the third bill targeting qualified immunity introduced this month, joining the Justice in Policing Act, as well as the End Qualified Immunity Act, sponsored by Rep. Justin Amash (L-MI). The Braun bill, like the Amash bill, would apply to all local and state government employees, including prison guards, county clerks, public school administrators, and municipal and state employees. In contrast, the Justice in Policing Act is limited to law enforcement officers, though only the Justice in Policing Act addresses federal agents.

“All three bills would mark significant improvements over the status quo,” noted IJ Attorney Patrick Jaicomo. “Any police reform bill is only meaningful if it includes reform to qualified immunity.” 

Curiously, the Justice in Policing Act would preserve a damaging loophole in civil-rights litigation. Unlike lawsuits against state and local officials, which are expressly authorized by Section 1983, there is no federal law that authorizes similar lawsuits against federal agents. As a result, individuals who have had their rights violated by a federal officer must instead bring a Bivens claim, named after a 1971 Supreme Court decision. 

Unfortunately, in the years since the Supreme Court sharply limited Bivens, so it only applies to a handful of constitutional rights today. Just this past February, the court rejected a Bivens claim filed by the parents of Sergio Hernandez, a 15-year-old boy who was tragically killed by a U.S. Border Patrol agent. So even though the Justice in Policing Act would end qualified immunity for state, local, and federal law enforcement, since it does not amend Section 1983 to cover lawsuits under federal law, it still would not have helped Hernandez’s family in their civil rights lawsuit. 

“The principle at stake is simple: If citizens must obey the law, then government officials must obey the Constitution,” concluded IJ President and General Counsel Scott Bullock. “The Constitution’s promises of freedom and individual rights are important only to the extent that they are actually enforced—and the Institute for Justice will work tirelessly to ensure that they are.”