GOP divisions are emerging on whether to change qualified immunity for police as part of a reform bill.
The legal doctrine, which shields police officers from civil lawsuits, has quickly become a potential obstacle to securing a bipartisan deal on police reform. A Democratic bill would scale back the legal protections, a move that the White House and some GOP senators view as a “poison pill.”
Getting rid of qualified immunity altogether is viewed as a nonstarter for Senate Republicans, but there are ongoing conversations among senators about the doctrine that has been thrust into the national spotlight following the killing of George Floyd in the custody of Minneapolis police last month.
“I think we’re all over the board right now on the Republican side,” said Sen. Mike Rounds (R-S.D.), who characterized himself as open to talking about changes but also “very, very hesitant” to do so without a full grasp of the potential ramifications.
Some Republicans, while stressing they do not support ending immunity, are signaling they are open to discussing changes if they’re part of negotiations on a larger police reform deal.
Sen. Mike Braun (R-Ind.) is planning to introduce legislation next week that would reform, but not eliminate, the legal protection.
“I’m for anything that enhances personal responsibility, accountability and transparency,” Braun told reporters. “When I talk about reforming it, it’s this simple: Make sure that in these egregious instances, that there is accountability, and you’re not protected, just like you aren’t in other elements of society. And make sure that you’re not hampering already the toughest job that’s out there with frivolous lawsuits. And I think that can be done.”
Braun said there is similar interest from “several” within the Senate Republican conference, but caveated that the bill could morph as he talked to more colleagues. He warned that not putting changes to qualified immunity on the table could prevent Congress from getting a bipartisan deal.
“If we just have a hands-off approach to that, we [may] very well end up not getting a Democratic vote on our bill and not a Republican vote on their bill. And I think this is the linchpin that could find agreement,” he said. “Avoiding it all together, to me, avoids the meatiest issue, the most important issue that we’re talking about when it comes to police reform.”
Sen. Lindsey Graham (R-S.C.), the chairman of the Senate Judiciary Committee, also said he was willing to have conversations with Democrats about making changes to qualified immunity, but added that if they insisted on eliminating it altogether it would be a “very short conversation.”
“Being in the policing business is not your normal business. There needs to be a filter when it comes to lawsuits. …It is now time, in my view, to look at the development of the qualified immunity doctrine as it relates to the 1983 underlying statute and see if we could make it better, not gut it,” Graham said.
“If you want to reform it so that municipalities and agencies and organizations running police departments will have some protection but not absolute immunity, let’s talk. Maybe we can get there if it is that important. Let’s at least try. That is what the legislative process is all about,” he added.
Qualified immunity, developed through a handful of Supreme Court rulings, protects police officers from being held personally liable so long as their actions do not violate a “clearly established” law. Justices Clarence Thomas, whom Graham referenced, and Sonia Sotomayor have both voiced skepticism about the legal doctrine.
Critics argue that its intent, to protect police officers from frivolous lawsuits, has been stretched to make it difficult for someone to sue a police officer even in cases where they believe there are clear examples of excessive force or violations of civil rights.
Graham appeared to acknowledge that it had become overly broad, saying that “if you presented to me qualified immunity in its current form as a legislative proposal, I would vote hell no.”
The House Democrats’ bill, which is scheduled to get a vote next week, would overhaul qualified immunity by allowing individuals to receive damages in civil court “when law enforcement officers violate their constitutional rights by eliminating qualified immunity for law enforcement,” according to a Judiciary Committee fact sheet.
The measure would specify that a defendant is not immune from lawsuits just because they were acting in a way they thought was reasonable or lawful at the time or because they weren’t violating a “clearly established” law.
The Senate GOP bill, however, does not delve into qualified immunity. Sen. Tim Scott (R-S.C.), who spearheaded the proposal, told reporters this week that he viewed it as a “poison pill,” and White House press secretary Kayleigh McEnany has warned that it’s a “nonstarter.”
Several high-ranking GOP senators also warned that they did not expect it to end up in their police reform bill.
“I don’t think it’s likely to be changed in our bill,” said Sen. Roy Blunt (R-Mo.), a member of Republican leadership.
Sen. John Cornyn (R-Texas), an adviser to Senate Majority Leader Mitch McConnell (R-Ky.), said he didn’t think removing or changing qualified immunity “has the support to get done.”
“The biggest concern I have is about anything that might stop us from actually passing a police reform bill and that could do it because it does divide our conference,” Cornyn said.
Democrats, and potentially Braun, could try to add changes to qualified immunity into the GOP bill if it’s able to overcome an initial procedural hurdle next week and proceed to floor debate, though Braun has stopped short of saying if he would have enough GOP support to successfully add his forthcoming proposal to the overall measure.
Sen. John Thune (S.D), the No. 2 Republican senator, said that including qualified immunity was a “bridge too far” for most Republicans.
“I think that anything that messes with the individual officer’s protection against, you know, a lawsuit that they could lose … everything over is too far. Are there other ways you could get at the issue? Maybe, but you know, that’s why we’ve got to get the bill on the floor,” he added.
Some Republicans have called for Congress to have a separate, larger, conversation about how to address qualified immunity. Cornyn, for example, said he would “prefer to do some hearings” in the Judiciary Committee.
Blunt added that Democrats could, potentially, get concessions on qualified immunity if they let the competing police reform bills go to conference — something Speaker Nancy Pelosi (D-Calif.) has said she wants.
“I’m not sure that there couldn’t be some modifications in a bill that was actually going to the president’s desk,” Blunt said. “There are discussions going on and I think those would be most likely to have a result in a conference.”