Will Dems Prevent Abolition of Qualified Immunity?

No, it’s not the answer to all police abuse problems, as some have been disingenuously claiming to push their agenda to the unduly passionate, but abolishing qualified immunity is certainly a hugely important reform. And with the bipartisan support of Republican Senator Tim Scott, it should be a done deal. Yet, it’s not. How is this possible?

Sen. Tim Scott (R–S.C.) has reportedly proposed a compromise to rein in qualified immunity, the legal doctrine that makes it difficult for victims to sue government officials when their constitutional rights have been violated.

Scott, who has served as the Republican leader on police reform talks, is suggesting that the doctrine be pulled back for law enforcement and that liability shift from individual cops to the departments that employ them.


Some progressives have pushed back on the idea, according to [CNN}, instead insisting that individual officers be held accountable personally.

This smells of a concern by people who believed the spin pushed by those who so desperately wanted QI abolished that they grossly exaggerated what it does and what its abolition would do. In other words, they lied too well, now serving as the stumbling block to accomplishing their goal. Ironic, sure, but worse, this is one of the paramount problems with being so unprincipled in one’s cause that they will say anything, no matter how dishonest, to convince the clueless to come to their side.  It’s happening with QI. It’s happening with police and crim law reform in general. We’re awash in nonsensical claims, false claims, and we’re watching good solutions challenged for fantasy reasons. Well done, activists.

Scott’s “shift” is that Bivens and § 1983 suits name the police departments rather than the individual officers as parties, and that the departments, rather than the individual officers, be liable for any judgment. Why would those in the progressive wing of the Democratic Party reject this proposal? The cynical answer is that they just won’t agree to anything that would be acceptable to Republicans. The less cynical answer is that Scott’s proposal fails to hold the individual officers “accountable.”

What exactly this means is unclear, “accountability” being another word of dubious meaning these days, but to the extent it can be read as meaning that it lets the officers off the hook, free from punishment, it’s nonsense. Anyone with any concept of the law and how these cases work should know that these suits have nothing to do with accountability. They never did. They never will. What abolishing QI has to do with is getting those harmed by bad cops compensated.

As for the cops, they will still be named (and shamed, as the case may be) in the complaint, even if their names aren’t in the caption. As for the liability, cops don’t pay the judgments anyway.

“Sen. Tim Scott’s proposal—requiring the city to bear the costs of these suits, instead of officers—would make transparent what already happens in over 99 percent of cases,” writes Joanna C. Schwartz, a professor of law at the University of California, Los Angeles and an expert in qualified immunity. “We absolutely need to find ways to increase officer accountability—by, for example, changing union protections that make it difficult to fire bad officers.”

It was “transparent” to anyone remotely familiar with QI, like lawyers and judges, and in a better world, people who vote on laws in Congress. And not only was it transparent that the municipalities pay the judgments against their cops, but it’s what we should want. Does anybody think a cop can pay a $27 million judgment? Where the hell do people think the money comes from to pay these huge sums? You can’t get blood from a rock, and if someone is seriously harmed by police misconduct, would they prefer the police officer be held “accountable” or get the friggin’ money?

Qualified immunity isn’t entirely bad, and there is some justification for the doctrine and its requirement that at its constitutional fringes, police should have some notice that what they do violates the Constitution. But there is a litany of cases, particularly following the Supreme Court’s botch of White v. Pauly, that are so flagrantly egregious, so obviously unconstitutional, that QI morphed from what might possibly be deemed a rational limit to the most obscure of violations to a bludgeon in defense of the most blatant and reprehensible police misconduct.

It needs to go, not because it somehow fails to hold police accountable in the mushy minds of the terminally clueless, but because real victims of horrible and outrageous police misconduct find themselves foreclosed from relief because no court decision ever held that stealing $255,000 while executing a search warrant was a wrong thing to do, because nobody, but nobody, would have ever thought otherwise.

There’s an old saying that we shouldn’t let the perfect be the enemy of the good, and it might apply here in the sense that getting rid of QI is of sufficient importance that foregoing the “accountability” of an individual police officer is worth the price. While this might serve as a collegial way to circumvent the silliness, it’s not real. QI has nothing to do with police accountability, with punishing the individual officers involved. It has to do with getting people harmed by police, as well as other government officials, being compensated.

We are at the cusp of abolishing qualified immunity, and for those people whose constitutional rights are violated and suffer damages, this is hugely important. To see it squandered by fantasy arguments is worse than stupid. It adds insult to the injury already suffered by these people. It’s time for the unduly passionate to pull their heads out of their clouds and get this deal done. Abolish Qualified Immunity, and save the vapid crap for their insipid fans on the Twitters.

14 thoughts on “Will Dems Prevent Abolition of Qualified Immunity?

  1. Lee Keller King

    Once upon a time, I handled civil rights cases against abusive officers. We never expected the individual officer to have to pay the tab, and frankly didn’t care. Our goal was to obtain compensation for people whose civil rights (and most often, their bodies) had been violated by the egregious conduct of officers of the law.

    Unfortunately, residing and practicing law in the US Fifth Circuit Court of Appeals made this nearly impossible as the years went on. And so, many people who were unjustly detained, manhandled, beaten, and/or died in police custody, were denied the right to pursue their otherwise valid claims (or for their heirs to pursue those claims after their deaths).

    “Accountability” was something we left to the individual departments and political units who employed the offending officers. We represented the injured individuals and not the public as a whole. But because of qualified immunity, the pool of attorneys willing and able to take those cases dwindled to a small number that were only able to represent those injured individuals whose cases were sufficiently egregious, sufficiently newsworthy, so as to avoid dismissal on grounds of qualified immunity. (Unfortunately, the firms I work toward didn’t have deep pockets to allow me to be in that small group).

    I am all for a reassessment of qualified immunity and changes to QI that would level the playing field for injured citizens whose rights have been violated. But I have no illusions that this will affect the actions of individual cops who think that they are above the law. But then I live in the real world and not some Progressive fantasy land that’s so many only far left appear to inhabit. I would despair for a nation, but despair is a sin.

    1. SHG Post author

      You implicitly raise a collateral problem, that so many of the unduly passionate see themselves as representing “justice” or a cause rather than a client. They spew platitudes, but do they put their client’s interest first?

      1. Lee Keller King

        A simple question with a simple answer: No. They appear to be more than willing to sacrifice the well-being of their own clients for some illusory “greater good” that advances the cause of their social justice dreams.

        That ain’t the way I was brung up and I entered the legal profession back in the early 90s. But what’s this old CIS gendered white man know, anyway? 26 years of actual legal experience is clearly trumped by the good intentions of the modern Woke kids that are being turned out of American law schools, right?

  2. L. Phillips

    Rabbit hole alert. I wonder if this is not so much a narrow legal question as a realization that “the mobs might come for me” for those in political office or governmental agencies who enjoy some privileges similar to QI. The ability to verbalize outrageous lies about private citizens while on the floor of the Senate, apparently without recourse, comes to mind. You can thank Harry Reid for my question.

      1. norahc

        Far too many people nowdays view debate as people on the same side talking about a subject. The other side is not welcome or tolerated, since they are the epitome of evil.

    1. SHG Post author

      To be fair, it’s not as if they would know what to do with a proposal that makes sense since it’s been so long since they’ve seen one.

  3. cthulhu

    Pournelle’s Iron Law of Bureaucracy:

    In any bureaucracy, the people devoted to the benefit of the bureaucracy itself always get in control and those dedicated to the goals that the bureaucracy is supposed to accomplish have less and less influence, and sometimes are eliminated entirely.

    The progs have no interest in actually improving the situation for any of their causes, because then what would they have left to rail against?

  4. B. McLeod

    The doctrine as it exists protects individuals and not entities. If the Democrats are proposing to eliminate entity responsibility and force all plaintiffs to recover only against individual officers, that may serve to dissuade individual officers but will also certainly end multi-million dollar recoveries for civil rights abuses. An argument can be made for this “individual accountability” but it will leave a lot of plaintiffs with unrecoverable judgments. Certainly the taxpayers will come out better.

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