On June 8, 2020, the United States House of Representatives introduced the Justice in Policing Act of 2020, which takes several steps toward comprehensive police reform and accountability. The legislation proposes several key policing measures, including prohibition of discriminatory profiling and mandatory training to prevent profiling; banning chokeholds and no-knock warrants; limiting the transfer of military style equipment to local police departments; and establishing a National Police Misconduct Registry to prevent the rehiring of officers fired for misconduct. While many of these reforms are aimed at preventing the types of police misconduct at the heart of the protests currently gripping the nation – others create avenues for redress for the victims of such misconduct.
Qualified immunity is a judicially created legal doctrine that shields police officers from liability for money damages from lawsuits alleging constitutional violations, so long as the officer did not violate clearly established law. The bar is quite low, as the United State Supreme Court has described qualified immunity as protecting “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
The Justice in Policing Act tackles qualified immunity head on, amending 42 U.S.C. § 1983, the most common vehicle for filing federal civil rights lawsuits, to remove the qualified immunity defense:
SEC. 102. QUALIFIED IMMUNITY REFORM.
Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended by adding at the end the following: ‘‘It shall not be a defense or immunity to any action brought under this section against a local law enforcement officer (as defined in section 2 of the Justice in Policing Act of 2020) or a State correctional officer (as defined in section 1121(b) of title 18, United States Code) that—
‘‘(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or
‘‘(2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the defendant, or that at this time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.’’
Although the other proposed reforms are far more concrete, removing the defense of qualified immunity as a barrier to lawsuits against police officers could drastically change the landscape of civil rights lawsuits moving forward.
The full text of the Justice in Policing Act of 2020 is available here.
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