Senate at logjam over changing 'qualified immunity' for police

Qualified immunity is emerging as a key sticking point in the congressional debate over reforming the police.

The legal doctrine, which can protect police officers from civil lawsuits, is facing fresh national scrutiny in the wake of George Floyd’s killing in the custody of Minneapolis police.  

But what, if anything, to do to change it is creating deep divisions in Congress, just as lawmakers are trying to find a larger deal.  

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A Democratic proposal would make sweeping overhauls to the legal doctrine. But GOP senators, backed by the White House, say changes are largely a non-starter.  

Asked about the chances that overhauling qualified immunity ends up in a final police reform bill, Sen. John ThuneJohn Randolph ThuneWhat Senate Republicans have said about election-year Supreme Court vacancies The Hill's 12:30 Report - Presented by Facebook - Don't expect a government check anytime soon The Hill's Morning Report - Sponsored by The Air Line Pilots Association - Trump contradicts CDC director on vaccine, masks MORE (S.D.), the No. 2 Senate Republican, indicated that, based on early conversations with members, many would not be able to support it.  

“That may be, you know, a bridge too far for a lot of our members,” he said.  

Sen. Tim ScottTimothy (Tim) Eugene ScottAuthor Ryan Girdusky: RNC worked best when highlighting 'regular people' as opposed to 'standard Republicans' Now is the time to renew our focus on students and their futures GOP lobbyists pleasantly surprised by Republican convention MORE (R-S.C.), who is spearheading a Republican police reform proposal, said that he believes a host of provisions supported by Democrats, including ending qualified immunity, would not have enough support to make it into a final package.  

“I don’t see how those things get to the finish line,” he said.  

Sen. John CornynJohn CornynCalls grow for Biden to expand election map in final sprint Bipartisan praise pours in after Ginsburg's death Chamber of Commerce endorses McSally for reelection MORE (R-Texas) said that he wanted Congress to get a bipartisan deal but that some proposals, like eliminating qualified immunity, “would be a lot more controversial.”  

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“It’s a tough job under any set of circumstances and to have lawsuits filed which sort of flyspeck what you did or didn’t do at a time when you didn’t know whether you know, somebody is trying to kill you or not. ... I think you need that sort of balancing of interests that qualified immunity provides,” Cornyn said. 

 Scott and a group of Republicans are drafting a police reform bill responding to Floyd’s death that could be released as soon as this week. That bill, according to multiple GOP senators, is not expected to end qualified immunity.  

Some GOP senators have signaled they are open to discussing qualified immunity but acknowledged that they are outnumbered by Republican colleagues who oppose making changes to it as part of a reform deal. 

“Most in our conference don’t want to go that far, but I’m not ruling it out. I want to see if I can get a few others interested in looking at that as well, because I think that’d be the one thing that would show that, in our conference, we mean business,” said Sen. Mike BraunMichael BraunPessimism grows as hopes fade for coronavirus deal McConnell shores up GOP support for coronavirus package Patient Protection Pledge offers price transparency MORE (R-Ind.).  

Both the White House and Attorney General William BarrBill BarrSunday shows - Ruth Bader Ginsburg's death dominates What Attorney General Barr really said about justice Pelosi: House will use 'every arrow in our quiver' to stop Trump Supreme Court nominee MORE have signaled they would not support proposals to scale back qualified immunity. 

President TrumpDonald John TrumpBiden leads Trump by 36 points nationally among Latinos: poll Trump dismisses climate change role in fires, says Newsom needs to manage forest better Jimmy Kimmel hits Trump for rallies while hosting Emmy Awards MORE is “looking at a number of proposals, but there are some non-starters in there, I would say — particularly on the immunity issue,” White House press secretary Kayleigh McEnany told reporters this week.  

Qualified immunity, developed through a handful of Supreme Court rulings, protects police officers from being held personally liable if their actions do not violate a “clearly established” law. There are currently eight cases related to qualified immunity under consideration by the Supreme Court, though justices would need to agree to hear the cases. Justices Clarence ThomasClarence ThomasNames to watch as Trump picks Ginsburg replacement on Supreme Court READ: Supreme Court justices mourn death of Ginsburg, 'an American hero' READ: Supreme Court justices offer tributes to Ruth Bader Ginsburg MORE and Sonia SotomayorSonia SotomayorNames to watch as Trump picks Ginsburg replacement on Supreme Court READ: Supreme Court justices mourn death of Ginsburg, 'an American hero' READ: Supreme Court justices offer tributes to Ruth Bader Ginsburg MORE have both voiced skepticism about the legal doctrine. 

Critics argue that its intent, to protect police officers from frivolous lawsuits, has instead 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.  

A Reuters investigation found that police were granted immunity in more than half of 252 appeals court cases from 2015 to 2019. 

Democrats have included a provision in their bill that would make fundamental changes to qualified immunity.  

It would “eliminate the dubious court-made doctrine of qualified immunity for law enforcement,” House Judiciary Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerSchumer: 'Nothing is off the table' if GOP moves forward with Ginsburg replacement Top Democrats call for DOJ watchdog to probe Barr over possible 2020 election influence House passes bill to protect pregnant workers MORE (D-N.Y.) said on Wednesday.  

The bill, which is expected to be voted on in the House this month, would allow for 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.  

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The bill would specifically say that a defendant is not immune from lawsuits 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.  

Sen. Dick DurbinRichard (Dick) Joseph DurbinMcConnell focuses on confirming judicial nominees with COVID-19 talks stalled Senate Republicans signal openness to working with Biden Top GOP senator calls for Biden to release list of possible Supreme Court picks MORE (Ill.), the No. 2 Democratic senator, said changes to qualified immunity would have to be in a police reform deal in order to get his support.  

“The standard is impossible. You virtually have to produce an identical set of facts to ask the court to hold anyone in law enforcement accountable. You have to find an identical set of facts as a previous case, and that is almost impossible,” he added.