Trial News

The U.S. Supreme Court has denied several petitions for certiorari asking the Court to narrow or overturn qualified immunity, a doctrine that has shielded law enforcement officers and other government officials from liability even after they violate people’s civil rights. But as public outcry over the police killings of George Floyd, Breonna Taylor, and others continues across the country, the topic of police misconduct remains before Congress, which has taken initial, conflicting steps to confront systemic issues of police brutality, particularly against people of color.  

At the Supreme Court’s June 11 conference, multiple cert petitions in qualified immunity cases were denied—including Baxter v. Bracey (No. 18-1287), Zadeh v. Robinson (No. 19-676), and Corbitt v. Vickers (No. 19-679). Justice Clarence Thomas dissented from the denial in Baxter v. Bracey, stating that the “text of [42 U.S.C.] §1983 ‘ma[kes] no mention of defenses or immunities’” and that he continues “to have strong doubts about our §1983 qualified immunity doctrine.”

As Trial News previously reported, AAJ joined a cross-ideological group of organizations, led by the Cato Institute, in amicus curiae briefs filed on behalf of the plaintiff petitioners in these and other related cases. The briefs urged the Court to reexamine qualified immunity, arguing that as applied, it “increasingly means that public officials—even those acting deliberately in bad faith—will escape liability for their misconduct.” A cert petition in Taylor v. Riojas (No. 19-1261), another qualified immunity case in which AAJ has joined an amicus curiae brief supporting the plaintiff, remains pending before the Court.  

Although the Court so far has declined to take up qualified immunity, this doctrine and police accountability have been a recent focus on the Hill. Introduced on June 8 by Congressional Black Caucus Chair Karen Bass (D-Calif.), Sen. Cory Booker (D-N.J.), Sen. Kamala Harris (D-Calif.), and House Judiciary Committee Chair Jerrold Nadler (D-N.Y.), the “George Floyd Justice in Policing Act of 2020” (H.R. 7120) would prohibit racial and religious profiling, establish a national police misconduct registry, and ban choke- and carotid holds and certain no-knock warrants—police tactics that led to the deaths of Floyd and Taylor, respectively. The bill (a summary is available at https://tinyurl.com/y9o4pa2m) also modifies the qualified immunity doctrine to allow those injured or killed by police misconduct to hold the wrongdoers accountable. The legislation underwent a markup (the next step in the process for amending the bill and voting it out of committee) on June 17 and passed by a vote of 24 to 14. The bill now heads to the House floor for a vote on final passage.

“For more than 50 years, the unjust ‘qualified immunity’ doctrine has shielded law enforcement officers from lawsuits when they violate the civil rights of the people they are sworn to protect,” said AAJ CEO Linda Lipsen in response to the bill. “As an organization committed to fighting for justice and accountability, AAJ has joined amicus curiae briefs fighting to overturn this policy, including six briefs in the last two years alone. And now, we call on Congress to end the qualified immunity doctrine and make other critical changes to federal law, including enhancing the collection and dissemination of policing information and reporting. Those whose rights are violated must be able to seek justice and public accountability, especially when they or their families are targets of police violence and brutality.”

While the House debated this legislation on June 17, Sen. Tim Scott (R-S.C.) introduced a rival police reform bill in the Senate: The “Just and Unifying Solutions To Invigorate Communities Everywhere Act of 2020” or JUSTICE Act (https://tinyurl.com/ya96qmg7) includes police reform measures, such as incentives for police departments to reduce the use of chokeholds, but lacks the scope of the House bill and notably does not include anything on qualified immunity.

Lipsen criticized these limitations in a public statement, noting that “on issues critical to increasing accountability and transparency within law enforcement, this legislation fails to meet the type of reform this moment requires. The fact that the bill fails to include any mention of qualified immunity means that accountability and access to justice will remain unattainable for the majority of Americans hurt or killed by law enforcement.”

On June 10, the House Committee on the Judiciary held an oversight hearing on “Policing Practices and Law Enforcement Accountability.” Committee members at the hearing asked repeatedly about qualified immunity, and the hearing also included testimony from Floyd’s brother, Philonise Floyd, and Floyd family attorney and AAJ member Ben Crump. Floyd, Crump, and several other witnesses called for reforms to address, as Crump described, “what Black Americans have known for a long time—that it’s dangerous for a Black person to have an encounter with a police officer.” A full list of hearing witnesses and copies of their testimony are available at https://tinyurl.com/y6uvjouk.

“These critical issues are long overdue for reform, and trial lawyers like Ben Crump are helping push for change by joining together with the families they represent to educate Congress and ensure that action is taken,” said AAJ President Bruce Stern, who also submitted a statement on behalf of AAJ to the committee. “It’s time to stop these killings and end systemic racism in law enforcement and across society.”

“The time for federal action is now,” Stern continued. “Congress must pass legislation to increase transparency, justice, and public accountability for all those whose civil rights continue to be systemically violated by police violence and brutality. There are concrete and decisive steps Congress should take right now: end the qualified immunity doctrine that shields law enforcement officers from lawsuits when they violate constitutional rights, change the law to ensure accountability for employers of officers, enhance the collection and retention of body camera video and policing practices, and create a national police misconduct registry to prevent racist or abusive officers who have been fired from being hired in another town.”

To learn more about representing victims of police misconduct, access AAJ Education’s complimentary webinar, “Creating Change: An Introductory Primer for Police Misconduct and Civil Rights Cases” at www.justice.org/memberwebinars. Presented with AAJ’s Civil Rights Section, Police Misconduct Litigation Group, and Minority Caucus, as well as the National Police Accountability Project, it included a recorded statement from Crump and live presentations from AAJ members on pleading standards, common challenges, dealing with municipal defendants, and more.