It’s now up to Congress to tackle the question of police immunity after the Supreme Court declined Monday to take up several cases on the issue, essentially punting the discussion to the legislative branch.
Though the Supreme Court could still announce that it will take a closer look at “qualified immunity” – the legal doctrine that critics say is shielding law enforcement from accountability – at some point in the future, the court has decisively signaled an unwillingness in the short term to overturn its previous rulings.
Attention on the issue comes as protesters across the country have been reacting to the death of a black man, George Floyd, at the hands of a white police officer in Minneapolis. The death has sparked nationwide protests pushing for more police accountability and reform.
In recent years, legal scholars, judges and justices on all sides of the ideological spectrum have criticized the legal doctrine known as qualified immunity, arguing that it is not grounded in the proper legal authorities and it too often shields officials from accountability.
“The Supreme Court created this mess. So the idea that they should leave it to Congress is a total cop-out. They should clean up their own mess, they’re the ones who created it,” Boston University law professor Jack Beermann told CNN.
House Speaker Nancy Pelosi said ending qualified immunity is a top priority for Democrats in any bipartisan talks that could occur.
“The Supreme Court’s decision not to take up qualified immunity makes it clear that Congress must act to end this unjust doctrine,” Democratic Rep. Ayanna Pressley said in a statement to CNN Tuesday.
Pressley and independent Michigan Rep. Justin Amash introduced legislation in the House this month to eliminate qualified immunity. The bill has found support from 60 members of Congress on all sides of the aisle.
Earlier this month, Sens. Kamala Harris, Ed Markey and Cory Booker introduced a resolution to abolish qualified immunity for law enforcement, but no bill has been introduced. Markey said Monday that he will introduce qualified immunity legislation in the coming days.
“We must restore the legislative intent of its 149-year-old landmark civil rights law, which gave victims of police brutality the right to their day in court through a civil action,” Markey said in a statement.
Any changes to qualified immunity law faces an uphill battle.
Opposition from White House
Tim Scott, the only black Republican in the Senate, unveiled last week a 10-point reform proposal that included a nationalized database chronicling police misuse of force incidents as well as broader incentives to help local and state police forces implement bias and intervention trainings. Qualified immunity is not included in the legislation, and Scott said that rolling it back is something “that most Republicans don’t like at all, to include myself.”
“From the Republican perspective, and the President has sent a signal that qualified immunity is off the table. They see that as a poison pill on our side,” Scott said on CBS “Face the Nation” on Sunday. “We can use the decertification of officers, except for the law enforcement unions say that’s a poison pill.”
“We know that any poison pill in legislation means we get nothing done,” he said. “That sends the wrong signal, perhaps the worst signal, right now in America.”
Attorney General William Barr has also signaled an unwillingness to support changes to qualified immunity, saying on CBS “Face the Nation” last Sunday that the “overwhelming majority of police are good people.”
“I don’t think you need to reduce immunity to go after the bad cops, because that would result certainly in police pulling back,” Barr said.
The White House has also signaled that the President will not sign legislation bringing an end to qualified immunity, with White House press secretary Kayleigh McEnany calling it a “non-starter.”
“He’s looking at a number of [police reform] proposals, but there are some non-starters in there, I would say, particularly on the immunity issue,” McEnany said last Wednesday, citing Barr’s weekend interview.
In the Senate Republicans’ private luncheon Tuesday, Indiana Sen. Mike Braun said he walked colleagues through a proposal he is working on to amend qualified immunity. This has been a key sticking point between Democrats and Republicans in policing legislation.
Braun’s idea isn’t to get rid of qualified immunity, but to reform it. It would not go nearly as far as the Democratic proposal, which seeks to end it, but it signals that some Republicans are interested in making some small changes.
“We all know it’s an issue. It’s a complicated issue that needs more than a knee-jerk response,” Sen. Kevin Cramer said of the discussion.
But it’s going to be up to Congress if something will be done quickly.
“Congress is best situated to act most quickly,” UCLA law professor Joanna Schwartz said in an interview with CNN, adding that she finds it puzzling that some leadership has drawn a line in the sand on the issue.
“I find it puzzling given that all available evidence shows there is no legal justification for the doctrine and the doctrine achieves none of its goals,” Schwartz said.
University of Chicago Law School professor William Baude said in an interview with CNN that there have been several notable times that Congress has stepped up to remedy a decision by the court, noting the 1964 Civil Rights Act that formed the basis for Monday’s opinion holding that federal civil rights law protects gay, lesbian and transgender workers.
“Congress has repeatedly gone back and seen what the court has done and decided that they need to change the things,” Baude said. “This has been less true in this area.”
CNN’s Lauren Fox contributed to this report.