Today, Senate Republicans unveiled the JUSTICE Act, the party’s police reform legislation. The bill contains new accountability procedures, using a swath of carrot-and-stick measures to make departments comply with proposed no-knock warrant reporting requirements, ensure body cameras remain on during arrests and detentions, prevent the falsification of police reports, and retain law enforcement records.
For conservative-backed legislation with such a strong focus on accountability, the absence of qualified immunity may appear to be a curious omission. The JUSTICE Act introduces several mechanisms geared at incentivizing police departments to police themselves through a centralized, push-pull of government funds. But it does not restore the cause of action created by §1983 of the Civil Rights Act, which kept public officials accountable for actual misconduct by empowering citizens to recover damages for violations of their constitutional rights. Or at least, not yet.
The reality is that Republicans have the doctrine in their sights. While Representative Justin Amash (L-MI) made waves with the bipartisan End Qualified Immunity Act, many more conservatives are expressing interest in abolishing QI. Senator Mike Lee (R-AZ) referred to it as a “judge made doctrine” ripe for congressional intervention, and is reviewing data from states that have unilaterally repealed the unfounded defense. Senator Lindsey Graham (R-SC) and Senator Sheldon Whitehouse (D-RI) have been looking at pairing qualified immunity reform with liability insurance, to ensure that officers don’t risk defaulting on their mortgage due to snap-second misjudgments. And Mike Braun (R-IN) has also begun talking with his caucus about abolishing the doctrine, declaring its time for his party to show that when it comes to police reform, they mean business.
The JUSTICE Act could prove the perfect vehicle for restoring the right to recover from constitutional misconduct. The government-mandated record requirements would ensure plaintiffs can prove their case in court when police officers or other public officials violate their rights. Coupling this with liability insurance requirements would result in departments, rather than individual officers, being held responsible for police misconduct. Officers like Derek Chauvin, who had 18 complaints against him prior to the devastating death of George Floyd, might get the boot after the first lawsuit.