Yesterday, the IndyStar published an op-ed by Republican Senator Mike Braun on the subject: “The federal government should not reform local police departments.” On the whole, the piece is a jumble of contradictions, partisan mudslinging, and unseemly fawning over law enforcement. But wedged between all of that are also some grossly inaccurate policy arguments, the most important of which is Sen. Braun’s assertion that he opposes “any reform to the current doctrine of qualified immunity” because the doctrine “extends critical protections for law enforcement officers who are forced to act in split-second scenarios when lives are on the line.”
As I have explained over and over and over again, qualified immunity is not what protects officers from liability when they make “split-second decisions when lives are on the line.” The Fourth Amendment itself provides this protection, and it would continue doing so if we abolished qualified immunity tomorrow.
Though others may not know any better, Sen. Braun surely does. Indeed, last year, he was actually the first Republican to introduce qualified immunity reform in the Senate. His “Reforming Qualified Immunity Act”—which would have eliminated the “clearly established law” standard but replaced it with actual good-faith safe harbors—was premised on the idea that modern qualified immunity does not protect reasonable, good-faith decisions by police officers. As he correctly stated at the time:
While qualified immunity originally was intended to defend government employees acting with good faith, the doctrine has expanded to protect those acting well-outside the law if the allegedly deprived right has not yet been “clearly established” in the relevant jurisdiction.
Sen. Braun’s statement even cited the specific examples of Kelsay v. Ernst and Baxter v. Bracey, which, in his words, respectively granted immunity to officers who “[a]ssaulted and consequently broke the collarbone of an unarmed and nonviolent woman” and “[r]eleased a police dog on an unarmed person who had surrendered.”
Besides advancing baseless arguments that he himself has previously rejected, Sen. Braun fails to acknowledge, much less explain, his complete reversal on qualified immunity. To be sure, Sen. Braun shelved his own reform proposal last year after his disappointing appearance on Tucker Carlson. But until now, he’d given no indication that he’d abandoned all hope of reforming the doctrine in any respect. Unfortunately, the tenor of his op-ed suggests this about-face has more to do with politics than policy.
The central substantive theme of Sen. Braun’s op-ed is that the federal government should not be involved in policing reform. Here’s how he begins his piece:
[A]s discussions of policing reform continue to dominate the news and threaten to upend the policing profession and the protections afforded to those who wear the badge, two things are very clear to me: No one does a more difficult job than our nation’s law enforcement, and the federal government is not where these discussions should be taking place.
Except… he then immediately touts the virtues of Tim Scott’s JUSTICE Act, which would have done exactly that:
Last year, I signed on to U.S. Sen. Tim Scott’s JUSTICE Act, a reform bill that had the support of many national and state law enforcement groups.
The JUSTICE Act didn’t address qualified immunity, but it would have implemented a wide array of national policing reforms, including, in Tim Scott’s own words, “ending the use of chokeholds and increasing the use of body worn cameras” and facilitating training on “de-escalation of force and the duty to intervene.” While it didn’t go as far as the Justice in Policing Act and relied more on incentives than direct regulations, this clearly would have been major policing reform by the federal government.
Contradictions aside, it’s one thing to argue that Congress should not—and indeed, is not even constitutionally authorized to—directly regulate all local policing practices. Policing is, in some ways, a quintessentially local matter, and Congress shouldn’t decide every detail of how officers carry out their duties.
But Congress is authorized to protect constitutional rights. Section 1 of the Fourteenth Amendment protects people’s constitutional rights from being infringed by state and local governments, and Section 5 explicitly authorizes Congress to pass legislation to enforce that protection.
While there’s disagreement about the exact scope of this “Section 5 power,” its unambiguous core is Congress’s power to create a federal cause of action against state officials who violate constitutional rights—including police officers. That is exactly what Section 1983 was enacted to provide, and exactly what qualified immunity has severely undermined. Taken to its logical conclusion, Sen. Braun’s assertion that Congress should play no role in checking constitutional violations committed by state and local police is an argument against federal civil rights laws entirely, if not the Fourteenth Amendment itself.
Moving on, Sen. Braun spends several paragraphs criticizing the idea of “defunding the police” and attempting to tie this slogan as closely as possible to various Democratic leaders in Congress. For example:
Though top Democrats in Congress have tried to replace the radical left’s rallying cry of “Defund the police” with bureaucratic baloney as much as they can – likely after discovering the vast majority of Americans know that defunding our police is as foolish as it sounds – their end goal is the same: to divert funds away from police, make our communities less safe and demonize those who protect and serve.
There’s not much to say about this straw man except that yes, “defund the police” was a dumb slogan. But the major policing reform proposals before Congress—e.g., limiting the use of chokeholds and no-knock warrants, requiring body-worn cameras, restricting transfer of military equipment to local police, and of course, qualified immunity reform—have nothing to do with “defunding the police.”
In terms of qualified immunity itself, here’s the one paragraph in the op-ed discussing Sen. Braun’s current position on the issue:
While law enforcement has resoundingly rejected calls to modify or end qualified immunity, Democrats have continued to push for ending this protection. I oppose any reform to the current doctrine of qualified immunity, which I believe extends critical protections for law enforcement officers who are forced to act in split-second scenarios when lives are on the line.
As noted above, the idea that qualified immunity is needed to protect officers from liability for good-faith decisions in “split-second scenarios” is completely wrong. Some defenders of qualified immunity might assert such falsehoods out of genuine ignorance, but Sen. Braun presumably knows better. After all, he acknowledged less than a year ago that qualified immunity is a “misguided protection that has been extended to those who act under the color of the law to illegally deprive citizens of the rights, privileges, and immunities secured by the Constitution and our country’s laws.”
I want to focus now, however, on the first part of Braun’s statement above, where he notes that “law enforcement has resoundingly rejected calls to modify or end qualified immunity.”
As a threshold matter, this assertion is inaccurate. Since last year, groups like the Law Enforcement Action Partnership and National Organization of Black Law-Enforcement Executives have explicitly called upon Congress to eliminate qualified immunity, in part because of their recognition that the doctrine actually harms the law-enforcement community itself. And as I discussed in detail here, the Major Cities Chiefs Association—though once opposed to any qualified immunity reform—recently came out in support of major alterations to the doctrine.
Nevertheless, it is true that the bulk of the law-enforcement lobby does oppose qualified immunity reform (albeit by repeatedly asserting blatant untruths about the doctrine). Sen. Braun takes this opposition as dispositive that qualified immunity reform is a bad idea, asserting that “[a]ny federal reform package that cannot garner the support of law enforcement is not the right solution.” He comes back to this theme at the very end of his op-ed, concluding that:
Federal reform that cannot garner the support of law enforcement will be ineffective and put us further down the path toward defunding the police that has already jeopardized those who protect and serve our communities so much.
This premise, in my view, is about as persuasive as “defense contractors are opposed to any reduction in defense spending; therefore, Congress shouldn’t reduce defense spending.” If the very issue in question is whether a particular subset of government actors are committing routine constitutional violations—with no recourse for their victims—then it should be obvious that those very actors shouldn’t have the final word on whether there’s actually a problem.
Imagine, for example, that lawyers had somehow convinced the Supreme Court that they should be immune from malpractice suits, unless a prior judicial decision already held that the exact conduct they committed was malpractice. Suppose then, that this rule led to widespread attorney misconduct that caused devastating harm to clients, but left them with no legal remedy. And then suppose that Congress finally took up the question of whether this rule should maybe be reconsidered.
Would you take as dispositive “well, the bar associations like this immunity, so we definitely have to keep it”?
* * *
Over the last several years, I have written many pieces responding to bad arguments in favor of qualified immunity. This one, however, was perhaps the most disappointing to write. Mike Braun—once a leader on this issue—has abandoned reasonable, thoughtful policy solutions in favor of partisan posturing, and he has fully embraced the law-enforcement lobby’s chief argument in support of qualified immunity, which he surely knows to be baseless. Hopefully the others in Congress will prove to be made of sterner stuff.