Qualified immunity stops lawsuits against police officers before they even begin and Michigan’s conservative Trump critic wants that to stop.
CASCADE TWP., MI — Michigan Rep. Justin Amash is calling for increased accountability from police following the death of George Floyd when a Minneapolis officer knelt on his neck for nearly nine minutes.
Amash, a former Republican who turned Independent after publicly denouncing allegiance with President Donald Trump’s policies, has introduced the Ending Qualified Immunity Act.
It’s an effort to stop qualified immunity, or practices that shield police from being sued over wrongful death.
According to the New York Times, his effort has earned the approval from Rep. Ilhan Omar (D-Minneapolis), who represented Floyd in Congress. She intends to support Amash’s bipartisan effort to increase accountability among America’s police.
Amash says that what he calls a rise in police brutality in the past several years is a consequence of things like qualified immunity making it hard, if not impossible, to break the pattern of violence among America’s police.
“This pattern continues because police are legally, politically and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve,” Amash wrote in a Sunday letter to other members of Congress. “The rule has sharply narrowed the situations in which police can be held liable — even for truly heinous rights violations.”
But what is that rule, and how does ending it help the next victim of police brutality get justice?
We break it down.
Qualified Immunity Shields Cops from Accountability
Qualified immunity is a power granted to government officials that shields them from civil lawsuits resulting from performing certain duties associated with their jobs acting on behalf of the government, as long as that act doesn’t violate “clearly established” law.
Qualified immunity doesn’t just shield government officials from paying out civil lawsuits, it prevents those lawsuits from ever going to trial.
A recent Supreme Court case dramatically expanded how this concept protects police.
In 2018’s Kisela v. Hughes, a Tuscon police officer responded to a call about a woman with a knife acting erratically. The officer eventually shot the woman though she was not engaged in criminal activity. She survived to sue.
Amy Hughes, the woman who was shot, attempted to sue the officer Andrew Kisela for use of excessive force under 42 U.S.C. §1983. But the district court ruled Kisela couldn’t be sued because of qualified immunity. The Ninth Circuit Court of Appeals reversed that, ruling the officer was not entitled to qualified immunity in this case.
The United States Supreme Court reversed that reversal, ultimately siding with the district court.
The Court argued that the officer had no way of knowing he was violating someone’s rights when he shot the woman because courts had not articulated, in advance of the shooting, what right the shooting violated.
But in her dissent, Justice Sonia Sotomayor explained that the right not to be subjected to excessive force by police is a clear part of the Fourth Amendment. By arguing that use of lethal force was still not forbidden explicitly enough to make an officer lose immunity, the Court established an absolute shield protecting all police use of excessive and lethal force.
Writing for the American Civil Liberties Union, lawyer Emma Andersson said the Court’s decision was not shocking, and not an aberration.
“In fact, it is just the latest in a long line of cases in which the Supreme Court has decimated our ability to vindicate constitutional rights when government actors overstep,” she wrote. “And when law enforcement oversteps, as was the case with Hughes, the consequences can be devastating.”
As Amash argues, the ultimate effect is that unless the exact same case has been decided against police in the same jurisdiction before, it can be nearly impossible to even get lawsuits against police to trial.
Enter George Floyd.
Dismantling Qualified Immunity
A police officer in Minneapolis knelt on Floyd’s neck for almost nine minutes, including well over a minute after Floyd had become unresponsive. Indicative of a pattern of systematic police brutality towards communities of color, Floyd’s death prompted protests and political tension that demanded structural changes.
Reversing Kisela is one of those structural changes, according to Amash.
Amash promised the full text of his bill ending qualified immunity will be available soon in a tweet Tuesday, but his comments seem to indicate that Kisela isn’t the only thing he’s taking aim at. He argued that qualified immunity was never intended by Congress and was wholly invented by decades of the Supreme Court misinterpreting the will of the legislative branch.
“This can create a permanent procedural roadblock for plaintiffs preventing them from obtaining damages for having their rights violated,” Amash wrote. “It is time for us to correct their mistake.”
The Ending Qualified Immunity Act does this by explaining that the Civil Rights Act of 1871, which allows citizens to sue when their rights are violated, explicitly does not offer qualified immunity as a way to protect police from liability in future cases, as preventative action.
The Tale of Two Conservatives
While Amash is calling for more police accountability, President Trump responded by calling for more intense police action. Trump told governors to “dominate” protesters earlier this week, The ‘Gander reported. The Associated Press reported Wednesday that the president “appeared to be privately backing off” that approach.
Amash and Trump have feuded on a number of issues over the past several years; their differing responses to Floyd’s death represent yet another contrast between the two conservatives. In fact, it was a protest against Trump’s support from Republicans that made Amash leave the party in 2019. In his July 4 op-ed for the Washington Post, Amash slammed the political parties as contributing to the disintegration of democracy and rise of President Trump.
“My parents, both immigrants, were Republicans,” he wrote. “I supported Republican candidates throughout my early adult life and then successfully ran for office as a Republican. The Republican Party, I believed, stood for limited government, economic freedom and individual liberty — principles that had made the American Dream possible for my family.”
“In recent years, though, I’ve become disenchanted with party politics and frightened by what I see from it,” Amash said. “The two-party system has evolved into an existential threat to American principles and institutions.”