Given the Supreme Court’s lack of interest in reconsidering qualified immunity, Congress has a responsibility to reassert its legislative powers by revoking this license for police abuse. Last week Schwartz and more than 300 other law professors urged Congress to do so, noting that the doctrine gives cops not only “one free pass” but also a “continuing free pass” by allowing courts to block claims without ruling on their merits, “thus insuring that no law becomes clearly established.”
The Ending Qualified Immunity Act, which Rep. Justin Amash (L–Mich.) introduced last month, so far has 64 cosponsors, all but one Democrats. The situation is similar in the Senate, where Mike Braun (R–Ind.) recently unveiled the Reforming Qualified Immunity Act, which would narrow the doctrine and make municipalities liable for police misconduct.
This issue is a test for conservatives who defend the rule of law and the separation of powers. Both of those principles are undermined by a judicially invented loophole that allows government officials to escape accountability when they abuse their powers.