Democrats’ police reform bill lets federal agents off the hook

Because every case is different, courts can almost always use qualified immunity to shield cops from lawsuits. A federal appeals court, for instance, has found that there is no “clearly established” right not to be shot to death by a police officer in your own home for no reason. In recent years, the Supreme Court has made it more and more difficult for victims to overcome qualified immunity, though not without dissent: Sotomayor has criticized her colleagues for creating “an absolute shield for law enforcement officers” that fosters “shoot first, think later” policing.

House Democrats’ bill, the Justice in Policing Act of 2020, ends qualified immunity for every “local law enforcement officer” and “State correctional officer.” This reform would help compensate people whose rights were violated by police or correctional officers employed by a state, county, or municipality. It would, however, do nothing for thousands of victims of federal law enforcement, including the notorious executive agencies that have unleashed astonishing cruelty on immigrants under the Trump administration.

There are actually two layers of protection for federal agents who infringe upon the Constitution, and the Justice in Policing Act removes neither of them. There’s qualified immunity, which functions the same way when applied to state or federal officers. But there’s also something known as the Bivens problem. Section 1983 grants individuals the right to sue state officials for damages—not federal agents. Decades ago, SCOTUS tried to work around this strange gap; its solution is now in grave peril.