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Qualified-Immunity Reform Divides Senate GOP

Republican Senator Mike Braun, author of the “Reforming Qualified Immunity Act” speaks during a committee hearing in Washington, D.C., May 20, 2020. (Al Drago/Reuters)

Republican members of Congress remain divided on the question of reforming qualified immunity for police officers, even as a GOP senator has proposed a bill that would curb the protections from civil lawsuits that officers currently enjoy.

The legal doctrine of qualified immunity arose from several Supreme Court rulings, and protects police officers from being held personally liable in civil lawsuits as long as they do not behave in a manner than flouts “clearly established” law. Justices Clarence Thomas and Sonia Sotomayor have criticized the doctrine in its current form, suggesting that it is applied too broadly. In the wake of the protests over George Floyd’s death, calls for reform have grown.

Senator Mike Braun, an Indiana Republican, last week introduced the Reforming Qualified Immunity Act, which would allow police officers to claim qualified immunity only when their alleged unlawful conduct was previously authorized or required by federal or state law, or if a court found that their conduct was consistent with the Constitution and federal law.

Braun’s bill comes as a separate police-reform bill spearheaded by Senate Republicans remains stalled after Senate Democrats blocked debate on the measure, saying it does not go far enough in holding police officers and departments accountable for misconduct. While some Senate Republicans have indicated that they might be open to discussing the issue of qualified immunity, demands from Democrats to eliminate the doctrine entirely have been rejected by the GOP and the White House as a non-starter, meaning the push to limit it could fall victim to the partisan fight over the police-reform package.

Senator Tim Scott of South Carolina, the upper chamber’s only black Republican, led his party in introducing the police-reform bill, and has said that any qualified-immunity reforms in the bill would have been a “poison pill from my perspective.”

Senator John Cornyn of Texas has similarly warned that the issue could endanger the bill’s passage by dividing his Republican colleagues. “The biggest concern I have is about anything that might stop us from actually passing a police reform bill, and that could do it because it does divide our conference,” Cornyn said last month.

Senate majority leader Mitch McConnell has gone even farther, indicating that he believes weakening qualified-immunity protections would deter people from becoming police officers.

“Imagine you’re thinking about becoming a police officer and you think you’re going to be personally liable for every fracas you try to break up. Some think you don’t become a police officer in that circumstance,” McConnell said at a press conference last week. “Other things, well you just stay in the police car and don’t ever get out because you could end up getting yourself sued over it all.”

A spokeswoman for Senator Lisa Murkowski of Alaska, a Republican who frequently breaks with her party on high-profile issues, has said that Murkowski feels differently, believing that Congress needs to have “a debate and discussion about reforming qualified immunity,” that takes the concerns McConnell expressed into account.

Senator David Perdue of Georgia, a state with a 32 percent black population, said last month that he, too, thinks qualified immunity “needs to be debated on the floor,” but added that House Democrats’ police-reform package, which would eliminate qualified immunity entirely, was “extreme.”

House minority leader Kevin McCarthy (R., Calif.) evidently agrees, and remains staunchly opposed to changes to quality immunity.

“It would jeopardize the livelihoods of cops who uphold their oath and would make it difficult for law enforcement agencies to recruit the high-performing cops we want to be on the force,” a spokeswoman for McCarthy said.

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