Criminal justice reform backers who hoped Congress would take at least some steps to curb the court-created doctrine of qualified immunity are reportedly in for a huge disappointment:
Police reform negotiators are no longer considering changes to a controversial legal doctrine known as “qualified immunity,” according to three sources familiar with the matter.
Qualified immunity, which shields police officers from civil liability for misdeeds, has remained one of the main points of contention in the police reform negotiations. It being taken off the table could make the final product tough to sell to progressives, who want to see it scrapped altogether and have been outspoken about their demands to change the doctrine. But Republicans have been firm that they have no interest in getting rid of qualified immunity.
Because maintaining a legal shield that allows government officials and law enforcement to violate an individual’s constitutional rights with near-impunity is fine by them. As Cato’s Jay Schweikert wrote back in a 2020 Policy Analysis:
Qualified immunity is one of the most obviously unjustified legal doctrines in our nation’s history. Although it is nominally an interpretation of our primary federal civil rights statute, that statute says nothing about any immunities, qualified or otherwise. And the common‐law background against which it was passed also contained nothing like the across‐the‐board immunity for public officials that characterizes the doctrine today. Qualified immunity has also been disastrous as a matter of policy. Victims of egregious misconduct are often left without any legal remedy simply because there does not happen to be a prior case on the books involving the exact same sort of misconduct. By undermining public accountability at a structural level, the doctrine also hurts the law enforcement community by denying police the degree of public trust and confidence they need to do their jobs safely and effectively.
Remember that the next time one of these folks opposing qualified immunity reform calls themselves a “constitutional conservative.” Chances are they are nothing more than run-of-the-mill statists in limited government drag.
