Justice reform must revisit qualified immunity

In the wake of the horrific killing of George Floyd at the hands of law enforcement, in addition to several noteworthy similar cases, it is time for elected leaders to rethink qualified immunity.

Nearly 150 years ago, in the wake of the Civil War, Congress passed a seminal civil rights statute to ensure newly freed African Americans would be able to enjoy the freedoms to which the Constitution entitles them. This Civil Rights Act of 1871, among other things, asserted that Americans would be able to pursue civil action if their constitutional rights were violated by a state actor.

This law is meant to allow citizens redress against rights-violating government officials, particularly the police. The statute, now known as Section 1983, has been deeply tied to the relationships between African Americans and the police, going back to Constitutional violations committed by Chicago police against a black family in the case Monroe v. Pape in 1961.

However, in 1982 the US Supreme Court put an end to that, finding that the government officials were entitled to “qualified immunity” from such lawsuits unless their actions violated a “clearly established” law. In practice, this has turned out to mean that unless the Supreme Court has decided a case with nearly identical facts in the past, officials have nearly total freedom to claim that they were acting in a legal gray area.

Worst of all, this has allowed courts to continue to punt on deciding whether or not a plaintiff’s rights were actually violated in these cases, thus allowing future capriciously acting officials to claim over and over that the law remains unclear.

The libertarian wing of the conservative movement, like the Cato Institute and the Reason Magazine, have long argued that this distortion of what should be a powerful civil rights law has given law enforcement and other government officials far too much leeway to violate the rights of American citizens. It has also recently become a favorite topic of some Trump-appointed judges, notably Fifth Circuit Appeals Court Judge Don Willett.

Now, lawmakers from all sides of the political spectrum are taking a second look at what they can do about qualified immunity legislatively, and it may be an area of reform that can bring those usually in political opposition together.

This week, Congresswoman Ayanna Pressley (D-Mass.) and Congressman Justin Amash (L-Mich.) announced that they were co-leading a bill to end qualified immunity.

In a letter the legislators wrote that qualified immunity “can create a permanent procedural roadblock for plaintiffs, preventing them from obtaining damages for having their rights violated.”

“The brutal killing by George Floyd by Minneapolis police is merely the latest in a long line of incidents of egregious police misconduct,” the letter continued. “This pattern continues because police are legally, politically and culturally insulated from consequences for violating the rights of people whom they have sworn to serve.”

The point of the push to end qualified immunity is perhaps best summed up in this one sentence:

“We must ensure that those whose rights are violated by police aren’t forced to suffer the added injustice of being denied their day in court.”

In this debate we have a chance to ensure real change in the way policing is practiced and civil rights preserved and the discussion on how to reform this questionable legal precedent should begin in earnest.

from Boston Herald https://ift.tt/378681d