Should Police Lose Their Protection Against Lawsuits?

For nearly half a century, a federal legal principle has given police officers “qualified immunity,” a shield against civil lawsuits alleging their actions violated someone’s federal civil rights as long as their actions didn’t exceed “clearly established” federal law.

That protection could disappear under H.R. 7085, a bill introduced June 3 by Congressman Justin Amash of Minnesota, elected in 2011 as a Republican but now officially a Libertarian. He’s joined by Congresswoman Ayanna Pressley (D, MA) and (thus far) 63 co-sponsors, ranging from leftish Democrats Alexandria Ocasio-Cortez, Ilhan Omar and Rashida Tlaib to long-time California Republican conservative Tom McClintock (R, Roseville).

H.R. 7085 pits police reform advocates against politically active unions representing police officers and, by implication, the politicians and candidates supported by those unions. It goes beyond budget changes that would “defund or “re-imagine” current spending.

The preamble to the H.R. 7085 recites that qualified immunity “has severely limited the ability of many plaintiffs to recover damages under section 1983 when their rights have been violated by state and local officials. As a result, the intent of Congress in passing the law has been frustrated and Americans’ rights secured by the Constitution have not been appropriately protected.”

H.R. 7085 would add text to Section 1979 of 42 U.S.C. 1983 to specify: “It shall not be a defense or immunity to any action brought under this section that the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when it was committed. Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the Constitution or laws were not clearly established at the time of their deprivation by the defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.”

H.R. 7085 was sent to the House Judiciary Committee, which hasn’t taken it up. If the Judiciary Committee does so and if the bill reaches the Democrat-majority House floor and passes, it would go to the Senate, currently with a Republican majority. If not approved, H.R. 7085 will die with the current Congress. However, it could then be reintroduced in a new Congress (starting in January 2021), possibly under a Democrat president and some speculate possibly with a Democrat Senate majority depending on Nov. 2020 elections.

Where’s LB and Its Electeds?

Exactly where LB incumbents and candidates stand on H.R. 7085 isn’t yet clear. Congressman Alan Lowenthal (D, LB-west OC) isn’t among H.R. 7085’s early co-sponsors. Nor are other L.A.-OC area Democratic House members.

Three November 2020 candidates in City Council runoffs – Cindy Allen (CD 2) and incumbents Dee Andrews (CD 6) and Al Austin (CD 8) are backed by the Long Beach Police Officers Association PAC and haven’t yet weighed in on HR. 7085. Nor have their runoff opponents: Robert Fox (CD 2), Suely Saro (CD 6) and Tunua Thrash-Ntuk (CD 8).

Will the City of Long Beach take a policy position on H.R. 7085 for inclusion in the city’s federal advocacy? That would be decided by a City Council majority subject to a potential veto by Mayor Garcia that two-thirds of the Council can override.

The Council’s Federal Legislation Committee (which can make recommendations to the full Council) is chaired by Councilman Austin (joined by Councilmembers Mungo and Richardson.) The committee didn’t discuss then-newly introduced HR 7085 when it last met on June 9.

Policy Beyond Politics

Apart from the local politics, would H.R. 7085 help or hurt public safety? Would it be wise to expose police to ruinous lawsuits if others challenge actions they took in good faith? Who would go into policing knowing that could happen?

In a release accompanying introduction of the H.R. 7085, Congressman Amash stated: “Qualified immunity protects police and other officials from consequences even for horrific rights abuses ... It prevents accountability for the ‘bad apples’ and undermines the public’s faith in law enforcement. It’s at odds with the text of the law and the intent of Congress, and it ultimately leaves Americans’ rights without appropriate protection. Members of Congress have a duty to ensure government officials can be held accountable for violating Americans’ rights, and ending qualified immunity is a crucial part of that.”

Congressman McClintock, a conservative Republican, delivered these comments on June 10 to the House Judiciary Committee:

“We have recently suffered multiple failures of law enforcement, beginning with the killing of George Floyd. He died because a rogue cop who, despite multiple misconduct complaints, remained on a police force, as did one of his accomplices.

“This has become an intolerable pattern in big city police forces, and we need to ask how politically powerful police unions and the politicians they maintain in office protect the bullies in the system, that inevitably led to atrocities like this.

“[T]he doctrine of qualified immunity as currently applied has no place in a nation ruled by law. For every right there must be a remedy, and qualified immunity prevents a remedy for those whose rights have been violated by officials holding a public trust.

“This reform should apply as much to the rogue cop who targets people because of their race as it does to IRS or Justice Department officials who target people because of their politics. Reforming qualified immunity simply holds public officials to the same standards as any other citizen exercising the same powers.

“[In addition] police records must be open to the public. It is a well-established principle that public servants work for the public and the public has a right to know what they’re doing with the authority the public has loaned them. And police departments should be able to dismiss bad officers without interference from their unions.

“By preventing the public from access to these records – and by preventing departments from acting on them – we destroy the very foundations of successful policing in a free society public trust and accountability.

“Finally, lest we forget, when faithful, dedicated and honest police officers – the overwhelming majority of those who serve – are attacked, degraded, disrespected, demoralized, hamstrung and withdrawn, those most at risk are the poor and defenseless who live and work in our inner cities.”

Bill Pearl is the publisher of lbreport.com, an online news source since 2000.