Should Police be Covered by qualified immunity

Policing Reform Now Faces Uncertain Future in US Senate

House Speaker Nancy Pelosi, once again, ushered the “George Floyd Justice in Policing Act” through the hyper-partisan chamber of Congress she babysits. That was the easy part. Now the House bill, along with the national debate over what protections should and should not be extended to the nation’s police officers, is in the Senate. There’s only one clear thing about its future: Even with Democrats in charge, the House bill doesn’t stand a chance of passage.

But senators seem to be senating again. Bipartisan, private talks are occurring for the first time since last summer’s racial unrest hinted at an invigorated, more diverse — maybe I mean more pale — and freshly empowered Black Lives Matter movement. But optimism waned as the pleas of the protestors met the cold reality of today’s United States Capitol — a monument to dysfunction where even popular proposals wither until their remnants are whispered nearly out of existence.

“I’ve always thought that the qualified immunity issue is really more symbolic than real”

Sen. Richard Blumenthal (D-Conn.)

The whispers are now, at least momentarily, nearly audible again. But the gulf between the two party’s competing measures — the ones defeated and abandoned, along with much of the debate and most coverage — only widened in the run up to November’s elections. And if it were even possible, in the wake of the attack on the Capitol, the nation’s two dominant parties seem to have moved even further apart.  

So while the two sides are now talking in the Senate, there’s one key component of the House bill they’re not talking about: Qualified immunity — or protection against civil suits while in uniform. At least not talking seriously about it anyway.

“It certainly is a big sticking point,” Sen. Tim Scott (R-SC) told The News Station while waiting for a tram under the Capitol.

He’s the GOP’s lead negotiator on all things policing and race, and not just because he’s the only Black Republican in the Senate. His personal admission of being racially profiled while a sitting United States senator stirred many in both parties and made him a trusted senatorial voice on this issue he knows too intimately.

As the GOP’s criminal justice leader, many see it as progress that Scott and Sen. Cory Booker (D-NJ) have even talked a little about these issues, potentially rekindling more formal bipartisan negotiations. But Scott and his GOP allies are starting this new Congress by attempting to derail Democrat’s efforts to overhaul qualified immunity — a sticking point for many progressives in both chambers. 

“[Overhauling] qualified immunity allows for police officers to be demonized, and that’s something I don’t support,” Scott told The News Station, almost as a statement of faith.

Likely because that position is now a matter of faith for many of today’s Republicans.

“That’s bad,” Iowa Sen. Chuck Grassley — the former GOP chair of the Senate Judiciary Committee — told The News Station after voting at the Capitol. “Everybody’s turning their back on the police, and if you made it easier to sue them, it would get even worse. You got to be able to do your job.”

Thus, the qualified immunity progressives are demanding is seemingly dead on arrival.

“There is some police reform that could be done, but not anything that drastic,” Grassley said.

“We can’t do it in a way that merely provides a veneer of justice while sacrificing real systemic change at the most opportune moment to achieve it”

Maritza Perez of Drug Policy Alliance

One senator, who happened to also serve two straight decades as Connecticut’s attorney general, sees a path out for the Senate, and thus the entire Congress.

“Accountability is the key, and it can be accomplished in a number of ways,” Sen. Richard Blumenthal told The News Station while walking through the tunnel connecting the Capitol to senators’ offices.

The Democrat supports restricting qualified immunity, as the House-passed legislation does. But he says party leaders should also entertain a different option: Lower the threshold for intent of wrongdoing for officers to be held criminally liable for alleged wrongdoing.

“In some ways, proof of criminal liability is more of a means to deter misconduct and impose accountability, because it means more to the average person,” Blumenthal contended. “Instead of having to pay money damages, and usually it’s the insurance company that’s responsible, public officials who violate somebody else’s constitutional rights can be liable for prison, which is a whole lot more a deterrent.” 

Bear with his legalese for a moment.  

“So lowering the mens rea, or intent standard for criminal liability, from specific intent to recklessness, or something like it, could be a way to impose accountability,” Blumenthal argued, “and I think maybe it would be more acceptable on a bipartisan basis.”

Blumenthal also put that in a simpler way.

“There would be no insurance against criminal culpability as there is now,” Blumenthal said.  

That means officers could actually go to prison if they’re found guilty of, say, killing an unarmed Black adult, Brown teen, Filipino American veteran, Native American aunt, white autistic child, Black nurse, etc. 

“You know, I’ve always thought that the qualified immunity issue is really more symbolic than real, although I favor reviewing and revisiting qualified immunity so as to impose more accountability,” Blumenthal continued, “but I think the civil standard, in some ways, is less effective than the criminal standard when there is real criminal intent that amounts to recklessness or disregard for somebody’s constitutional rights.”

Blumenthal and other senators recently raised the issue with President Joe Biden’s attorney general nominee. Even through his natural circumspection, Merrick Garland was open to the idea.

“Officers who follow the law and Constitution want that accountability,” the respected judge responded when freshman Sen. Jon Ossoff (D-Ga) questioned him on the scope and power of the Justice Department’s Civil Rights Division in his confirmation hearings. “Whether we need additional tools, I don’t know.”

Blumenthal also pressed the attorney general nominee on the issue, which falls under Section 242 of Title 18 of the Civil Rights Act of 1964. The Department of Justice’s website sums it up like this: “[It] makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.” (bold theirs)

“[Overhauling] qualified immunity allows for police officers to be demonized, and that’s something I don’t support”

Sen. Tim Scott (R-SC)

Blumenthal walked away from those hearings as one of Garland’s staunchest allies in Congress. Still, he wished the judge would have more forcefully supported his effort to explicitly change the law so officers could be held personally responsible if a jury of their peers finds them guilty.

“He was receptive to changing the standard, although he didn’t commit,” Blumenthal said.

Ideas like Blumenthal’s didn’t make it into the House version of the bill. That’s in part because in these early days of this new Congress, Speaker Nancy Pelosi and Democratic leaders are merely dusting off last year’s bills and shipping them over to this new Senate as quickly as possible. Those bills are all ones crafted back when Senate Majority Leader Chuck Schumer was powerless over now Minority Leader Mitch McConnell and his rigidly choreographed Senate floor.

The rush to pass policing reform in name only, according to critics, has enlivened some of Democrats’ would-be allies on the progressive end of the spectrum.

“While we understand the urgency to pass police reform at the federal level, we can’t do it in a way that merely provides a veneer of justice while sacrificing real systemic change at the most opportune moment to achieve it,” Maritza Perez, Director of the Office of National Affairs for the Drug Policy Alliance (DPA), released in a blistering statement immediately after the House vote. “Unfortunately, because House leadership chose to fast-track last year’s bill, rather than addressing advocates’ and community members’ concerns, that’s exactly the compromise they have made, and today’s vote solidified those failings.”

DPA wants to move resources away from traditional policing and enforcement of policies like the ‘war on drugs.’

Instead, they want to, as Perez wrote, “shift resources to education, housing, harm reduction services, and other infrastructure that strengthens communities and increases public safety.”  

Matt Laslo is Managing Editor of The News Station. To learn more about the veteran political reporter and professor -- or to read more of his work -- his bio page is here.

Matt Laslo is Managing Editor of The News Station. To learn more about the veteran political reporter and professor -- or to read more of his work -- his bio page is here.

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