U.S. Senators Kamala D. Harris (D-CA), Edward J. Markey (D-MA) and Cory Booker (D-NJ) on Wednesday announced a new Senate resolution that calls for the elimination of qualified immunity for law enforcement officers. Qualified immunity is a judge-made doctrine that protects law enforcement officers from being sued in their personal capacity and being held personally liable for their excessive use of force or brutality. In its passage of the Civil Rights Act of 1871, Congress expressly allowed for individuals to sue public officials, including police officers, who deprive them of their civil rights. But in the century and a half since, the Supreme Court has gutted this landmark law. It created and then expanded the novel defense of so-called qualified immunity for police officers.
Also co-sponsoring the resolution are Senators Bernie Sanders (I-VT), Elizabeth Warren (D-MA), and Chris Van Hollen (D-MD).
"Law enforcement should not be completely shielded from accountability when they violate someone's civil rights," said Senator Harris. "It is clear that the Supreme Court's qualified immunity doctrine is broken and in need of reform. It is time that we say clearly that police officers should be held accountable to the law and to the people they are sworn to protect, period."
"In our culture of systemic racism, qualified immunity is one of the foremost tools of oppression," said Senator Markey. "We cannot wait on the Court to fix its mistake. Police officers are murdering black and brown Americans in our streets without any accountability. We must act now and end qualified immunity once and for all. I thank Senators Booker and Harris for their partnership on this important resolution."
"For too long our courts have closed their doors to people seeking redress when police violate their constitutional rights," said Senator Booker. "We've got to ensure that there is access to justice to truly hold police accountable for their misconduct. This resolution is just the first step of moving forward to ensure people can use our courts to achieve the justice they deserve."
"The American people are sick and tired of police abuse without consequences," said Senator Sanders. "Congress must end "qualified immunity' now so that police can be held accountable for wrongdoing, just like everybody else. I am proud to be joining Senators Markey, Harris and Booker in advancing a resolution that calls for precisely that."
"George Floyd, Eric Garner, Breonna Taylor and countless other unarmed Black Americans whose names we do not know have been killed at the hands of police officers," said Senator Warren. "We need to fundamentally reform policing in America, and that must begin with real accountability for law enforcement officers responsible for unjustified killings of Black men and women. That's why Congress must end qualified immunity for police officers and departments that violate Americans' constitutional rights."
"Doctrines like qualified immunity block and stifle police accountability, preventing victims of brutality and mistreatment from seeking and obtaining justice. As the Supreme Court considers taking up cases based on this doctrine, the Senate must send a clear message by revoking it. This is a much-needed step forward -- no one should be above the law and Constitution," said Senator Van Hollen.
Qualified immunity affects people of color disproportionately because they are disproportionately victims of excessive force at the hands of law enforcement. According to a National Academy of Sciences study black men are two-and-a-half times more likely to be killed by law enforcement over their lifetime than white men. Over the course of their lives, approximately one in every 1,000 black men can expect to be killed by police.
The standard that the courts have created effectively immunizes law enforcement officers from civil suit unless a prior court case has "clearly established" that the challenged use of excessive force is illegal. In other words, under qualified immunity, the police are immune from liability unless the person whose rights they violated can show that there is a previous case in the same jurisdiction, involving the exact same facts, in which a court deemed the actions to be a constitutional violation.