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Congressional Action Is the Best Way to Fix Qualified Immunity

Empower Wisconsin | June 3, 2020

By Robert Verbruggen, National Review 

As cities across the country descend into chaos in response to a clear case of police misconduct, there’s a lot of pressure on the Supreme Court to reconsider a doctrine known as “qualified immunity.”

Under federal law, police officers who infringe on civilians’ constitutional rights can be sued in federal court, but the qualified-immunity doctrine shields them from such suits unless their actions violated “clearly established law.” In other words, plaintiffs have to show not only that their rights were violated, but also that the officer’s conduct had been addressed in similar previous cases and found to be unconstitutional. If no previous case involving the disputed conduct exists, as often happens because each case is unique, the officer is immune.

The Court has been reluctant to reconsider this doctrine, but it’s currently mulling whether to hear several relevant cases. These cases could have huge ramifications, because qualified immunity had come under intense fire for the last several years, starting long before the death of George Floyd. Many legal scholars say the doctrine should go entirely. And at minimum, it’s clear from a string of incidents in which courts gave cops immunity despite flagrant wrongdoing that the rule needs reform.

The Court should take up this matter. But it should not have the final word. Going forward, Congress should rewrite the law at issue to resolve the countless problems that have arisen from it in the 150 years since it was passed. The fair treatment of both civilians and police officers is at stake, and only Congress can reform qualified immunity in a way that fully addresses our current situation and concerns. Courts are limited to applying the law as it currently exists, and we need more than that right now.

Read more at National Review.

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