Law & the Courts

The Misplaced Populist Opposition to Qualified-Immunity Reform

New York Police Department (NYPD) officers form a line near City Hall in lower Manhattan, New York City, July 1, 2020. (Andrew Kelly/Reuters)
Making special exceptions for police officers at the expense of the victims of their abuse is just plain wrong.

In their telling, populist conservatives fight for the little guy, not corporate interests and elites. Yet when it comes to police brutality, many of these same populists sing a different tune. In order to “back the blue” and signal their pro-police bona fides, they are now advocating for special legal protections for government officials, even when those officials violate the constitutional rights of everyday Americans.

This inconsistency manifested itself recently after Senator Mike Braun, an Indiana Republican, introduced a modest criminal-justice-reform bill limiting — but not eliminating — “qualified immunity,” the judge-invented legal doctrine that shields government officials from liability for most actions they take on the job.

Under the doctrine, a court must have found in a previous case that “precisely the same conduct under the same circumstances [was] illegal or unconstitutional” for a liability claim against a government official to proceed, no matter how egregious or obviously illegal the conduct in question may be. As reported by USA Today, this has led courts to rule that all of the following were protected from liability suits:

Officers who stole $225,000.

A cop who shot a 10-year-old while trying to shoot a nonthreatening family dog.

Prison officials who locked an inmate in a sewage-flooded cell for days.

SWAT team members who fired gas grenades into an innocent woman’s empty home.

Medical board officials who rifled through a doctor’s client files without a warrant.

County officials who held a 14-year-old in pretrial solitary confinement for over a month.

A cop who body-slammed a 5-foot-tall woman for walking away from him.

Police who picked up a mentally infirmed man, drove him to the county line and dropped him off at dusk along the highway, where he was later struck and killed by a motorist.

Clearly, something is broken, and a fix is needed. Braun’s reasonable proposal would preserve the liability shield for officers in situations where their behavior was clearly established as legal at the time or where similar behavior has already been ruled permissible. It simply allows citizens to get their day in civil court in more instances, in an effort to increase accountability and ward off future injustices. This apparently heinous proposal earned Braun savage criticism from the populist Right, to the point that he felt the need to back away from it.

Fox News Host Tucker Carlson, the star of the populist movement, bashed Braun and accused him of “making it easier for left-wing activists to sue police officers.” In a contentious interview, Carlson charged the senator with supporting the murder of police officers and a “race-specific revolutionary movement.” Carlson’s denunciation led to a frenzy of attacks from other right-wing populists. Conservative Twitter pundit Charlie Kirk called Braun a “Schumer-appeasing Marxist sympathizer” and said it’s “time to flood the leftists out of the Republican Party.” Right-wing commentator Benny Johnson called Braun a “coward,” going on to falsely claim that Braun supports Marxism and “does not think cops should be able to defend themselves.” Many more critics similarly pounced on the senator.

The harsh backlash to Braun’s proposal is puzzling and misplaced. If populist conservatives care about fighting the establishment in the name of the little guy, there is perhaps no issue more clearly worthy of their support than preventing government officials from trampling citizens’ rights with impunity.

Contrary to populist counterarguments, repealing or rolling back qualified immunity would not make policing impossible or discourage police recruitment. The doctrine was only created by judges in 1982, and American police forces had managed to function credibly before then. Besides, Braun’s bill wouldn’t even eliminate qualified immunity entirely; it would just allow for accountability in many more cases.

As for Carlson’s warning about a nightmare scenario for police if qualified immunity was rolled back, Reason’s Billy Binion notes that “that claim hinges on the assumption that a slew of officers would lose their cases—a tacit acknowledgement that police culture needs to change.”

Reforming qualified immunity isn’t some purely left-wing cause. Even Justice Clarence Thomas, a man whose conservative credentials are universally regarded as beyond questioning, has said that “there likely is no basis” for qualified immunity in its current form and that it “appears to stray from the statutory text.” Are we supposed to believe that Thomas is a “Schumer-appeasing Marxist sympathizer” too?

Populist conservatives don’t even support qualified immunity outside of their pro-police blind spot. As pointed out by lawyer Casey Mattox, Turning Point USA, the organization run by Kirk, one of Braun’s harshest critics, has itself challenged qualified immunity in court in its efforts to hold university officials who violate free-speech rights on campus accountable.

Conservatives intuitively understand that legal accountability is crucial to discouraging government officials from violating citizens’ rights. Making special exceptions for police officers at the expense of victims of police abuse isn’t “populist.” It’s just wrong.

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