Three senators proposed a bill Wednesday to end qualified immunity, a legal doctrine that critics say is shielding law enforcement and government officials from accountability.
The legislation, proposed by Democratic Sens. Edward Markey and Elizabeth Warren of Massachusetts and Sen. Bernie Sanders of Vermont, an independent who caucuses with the Democrats, codifies that qualified immunity — a creation of the Supreme Court nearly 40 years ago — cannot be used as a defense by police officers and other public officials who violate the law.
Though the Supreme Court could still announce that it will take a closer look at qualified immunity at some point, the court has decisively signaled an unwillingness in the short term to overturn its previous rulings, punting the issue to Congress.
In recent years, legal scholars, judges and justices on all sides of the ideological spectrum have criticized the legal doctrine, arguing that it is not grounded in the proper legal authorities and too often shields officials from accountability. It has divided lawmakers, however, finding broad support across the Democratic caucus and resistance within the GOP.
Attention on the issue comes as protesters across the country have been reacting to the death this spring of a Black man, George Floyd, at the hands of a White police officer in Minneapolis. Floyd’s death has sparked nationwide protests pushing for more police accountability and reform.
“Qualified immunity makes it almost impossible for a victim of excessive force by a police officer to hold that officer accountable in a court of law. That must end,” Markey, the chief sponsor of the legislation, said in a statement to CNN. “If we want to change the culture of police violence against Black and Brown Americans, then we need to start holding accountable the officers who abuse their positions of trust and responsibility in our communities.”
Similar legislation was introduced in the House in June by Reps. Ayanna Pressley, a Massachusetts Democrat, and Justin Amash, a Michigan Libertarian, finding support from 60 members of Congress on all sides of the aisle.
House leadership also signaled that ending the doctrine is a priority, and a measure overhauling qualified immunity was part of a more expansive policing bill named for Floyd that passed the House last week.
But despite the policing bill’s broad Democratic appeal and introduction by powerful Sens. Kamala Harris of California and Cory Booker of New Jersey, the proposal would need bipartisan backing to make it through the Senate.
Sen. Tim Scott of South Carolina, the GOP leader of police reform efforts in the chamber, where he’s the only Black Republican, has said that rolling back qualified immunity is something “that most Republicans don’t like at all, to include myself.”
Both the White House and Attorney General William Barr have signaled that legislation eliminating qualified immunity wouldn’t find support in the executive branch, calling it a “nonstarter.”
Some Republicans have said they are willing to look at revision rather than elimination. Republican Sen. Mike Braun of Indiana walked members of his caucus through his reform proposal in June.
“We all know it’s an issue. It’s a complicated issue that needs more than a knee-jerk response,” Sen. Kevin Cramer, a North Dakota Republican, said of the discussion.
But ultimately the language wasn’t included in the Senate GOP’s policing bill, which collapsed when Democrats lined up to block it after criticizing the legislation as an inadequate response to the nationwide calls for action to address police misconduct and racial injustice.
“I wanted to reform it, hit a sweet spot where it helps police out, hold the bad apples accountable,” Braun told CNN’s Jim Scuitto of the GOP policing proposal. “We didn’t want to go there.”
Braun agreed that qualified immunity proposals were “dead on arrival.”