Tim Scott: No one will dismantle qualified immunity, either

How do we reform policing on a national level, given that the authority and jurisdiction for policing exists exclusively at the local level? Senator Tim Scott (R-SC) told CBS’ Margaret Brennan on Face the Nation yesterday that there are several options for Congress to facilitate reform. The one national policy that would increase accountability, however, is off the table for change, Scott says.

“If we can drill into officer misconduct,” Scott says, that will greatly improve policing and confidence in the communities it serves. So why not address qualified immunity, a federal legal status conferred on policing by the courts rather than Congress? That would be a “poison pill” in the Senate, Scott declared:

MARGARET BRENNAN: Officer misconduct. You’ve been talking about having information sharing when it comes to hiring. But what about the firing? Democrats in particular emphasize that reducing qualified immunity, making it easier to fire bad cops needs to be in legislation. Are you open to that?

SEN. SCOTT: Well, there are two ways that you could deal with that from- from the Republican perspective and the president sent the signal that qualified immunity is off the table. They see that as a poison pill on our side. We could use a decertification of officer, except for the law enforcement unions, say that’s a poison pill. So we’re going to have to find a path that helps us reduce misconduct within the officers. But at the same time, we know that any poison pill in legislation means we get nothing done. That sends the wrong signal, perhaps the worst signal right now in America. I think we’re going to have legislation that can be negotiated that gets us to the place where something becomes law that actually makes a difference. That’s got to be our goal.

MARGARET BRENNAN: To be clear, you personally would be open to reducing immunity, but not removing it completely?

SEN. SCOTT: No, I think there’s a way for us to deal with it. Decertification would be a path that I would be interested in looking at. That is a path that has got a roadblock because I don’t have the votes on the other side to- to make that into law. If we do it right, I think we can reduce the number of times that we’re dealing with misconduct on the police departments. If we don’t do it right, then we’ll have the same situation where there is no law. We can do better than that as a nation, and we will.

Getting rid of qualified immunity might be a poison pill, but why should Congress not act to restrict it? In this, Congress is about 50 years late in coming to the table. The doctrine of qualified immunity comes not from law but from judicial fiat, imposed by the Supreme Court in 1967’s Pierson v Ray for entirely rational reasons. The need to protect society raises the vulnerability of police and other officials to lawsuits stemming from the proper execution of their jobs — and since Congress never saw fit to address this, the Supreme Court decided to do it for them. A change from a good-faith to reasonable-person standard in 1982’s Harlow v Fitzgerald arguably shifted the burden of proof to the plaintiffs and made it more difficult for lawsuits to succeed. In fact, it seems it has made them impossible outside of a criminal conviction, or when political pressure gets high enough to force a deal, such as with the Philando Castile shooting in the Twin Cities.

Perhaps this is the best tailoring we can get for balancing the need to defend police in the proper exercise of their duty and the rights of citizens to demand accountability for injustice, but … shouldn’t Congress at least ask? We do need a mechanism to block frivolous and malicious lawsuits from tying up law enforcement, but we need to have better reach into real police misconduct, too. That’s something Congress should tackle directly, and unlike everything else Scott has in mind, it’s an issue that falls directly within Congress’ authority. The rest of the reforms Scott discusses are fine and mostly unremarkable — developing best-practice guidelines, providing better training, and adding and standardizing reporting requirements for all law enforcement agencies. All of that will provide better information, but it doesn’t really provide accountability for abuses. Only reforming qualified immunity will do that — on a federal level.

This just serves as a reminder that the only real accountability for police misconduct comes at the local level — and aimed at the city and county governments that run these police and sheriff’s offices. Scott’s proposal will give us plenty of data, but action has to take place locally. It’s long past time that America’s major cities rethink the progressives’ grip on their institutions and give others a chance to see if they can do better. At the very least, they would have a more adversarial relationship with the unions in cities, which might force more changes and real reform.

Addendum: The Supreme Court punted on it today, too:

The Supreme Court declined on Monday to take a closer look at a legal doctrine it created nearly 40 years ago that critics say is shielding law enforcement and government officials from accountability. …

Under the doctrine, an officer will not be liable even if he violated the Constitution unless it was “clearly established” by prior cases that his conduct was unconstitutional.

That requires a high bar and makes it difficult to win unless the situation is similar to a prior case with nearly identical facts. In some cases with unique fact patterns, of which there are many, officers have been granted immunity even if they have been found to have acted in violation of the Constitution.

The proper forum for this issue is Congress. One has to suspect that the Supreme Court has belatedly recognized this as well. If Congress doesn’t take it up, then it’s simply not serious about reform.