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Friday, 5 June 2020

End "qualified immunity" for police (and the TSA)


["Whatsoever a man soweth, that shall he also reap." (Lauderdale County Courthouse, Meridian, MS)]

In early March, shortly before returning home to San Francisco where I've been "sheltering in place", I took a week-long road trip along portions of the Civil Rights Trail from New Orleans through Alabama and Mississippi to Memphis.

This was largely terra incognita for me. My family lived near Houston -- then as now the largest city (and with the largest African-American population) in the South -- from 1963 to 1965 while my father was working for the Wolf Research and Development Corp., an MIT-spinoff data processing contractor to NASA, but I was too young then for the civil rights movement of that time to have left much impression on my memory. I've visited each of the 50 states as an adult, but my visits to this region were brief and long ago. My paternal grandmother had deep roots in Memphis, but she ran away to college in New York (another story for another time) and married a Yankee, and I've never been in any touch with my Memphis relatives.

Part of the purpose of my trip was to honor the memory of my dear friend and mentor Eric Weinberger, who was involved in civil rights activism in this region from 1961 though 1965. In 1964, Eric and his wife Elaine were among the trainers of volunteers for Freedom Summer in Mississippi 1964. Together with Rita Schwerner, they managed the community center in Meridian (when Eric wasn't barnstorming the state with the Free Summer Theater) after Rita's husband Mickey Schwerner and two other civil rights workers were murdered by Klansmen and local police during a visit to the site of a church-burning in the next county.

Some things in America have changed in half a century. Some haven't. One key enabler of police brutality today (racist and otherwise) that didn't exist in the 1960s is the legal concept of "qualified immunity", which in practice means police impunity.

Qualified immunity was created by the Supreme Court, not Congress, and could be ended the same way. The Supreme Court is considering petitions for review of several cases that might change this -- hopefully for the better since it can't get much worse -- as discussed in a New York Times editorial and an op-ed in USA Today last week.

But if the Supreme Court takes up the issue at all, it's more likely to narrow or "refine" qualified immunity than to admit that it was a mistake from the start and completely reverse its precedents.

Congress, however, also has the power to eliminate this form of police impunity entirely. Legislation was introduced in both houses of Congress this week to do just that. I have a more detailed analysis of these bills (which, if enacted would help rein in the out-of-control and lawless TSA as well as out-of-control and lawless police) today in the Identity Project blog.

Just as a key part of the legislative legacy of the police attack on Freedom Walkers on "Bloody Sunday" in Selma was the Voting Rights Act of 1965, the legislative legacy of the police murder of George Floyd should include enactment of the Ending Qualified Immunity Act.

The original sponsor of the Ending Qualified Immunity Act (text of bill) in the House of Representatives is Rep. Justin Amash, a conservative Libertarian and formerly a Republican. (There was an effort recently to draft him for the Libertarian Party nomination for President, but he declined.) The other 17 original co-sponsors of H.R. 7085 are led by Rep. Ayanna Pressley of Massachusetts.

My Representative, Speaker of the House Nancy Pelosi, is probably reluctant to endorse a bill introduced by any of these Representatives. Rep. Amash, doing the right thing for some of the wrong reasons, single-handedly blocked adoption by unanimous consent of the Trillions for Billionaires pandemic bill (negotiated and backed by Pelosi), so members of Congress had to return to Washington in person and show a quorum on the House floor to pass the corporate bailout/giveaway. Rep. Pressley and several of the other Democratic Party sponsors of H.R. 7085 have been among Pelosi's leading critics (from the left) within her party caucus in the House.

But justice -- and the sentiments of Rep. Pelosi's constituents in San Francisco -- should trump partisan politics on this issue at this moment. Speaker Pelosi should endorse and use her leadership to push for enactment of the Ending Qualified Immunity Act.

If you believe that black lives matter, ask your Representative to endorse and work for a prompt vote on H.R. 7085. It won't solve the problems of racism or of police in America, but it's a meaningful step in the right direction that's within our reach right now if we demand it from Congress.

Link | Posted by Edward on Friday, 5 June 2020, 14:02 ( 2:02 PM) | TrackBack (0)
Comments

On 8 June 2020, Rep. Pelosi and others introduced the "Justice in Policing Act of 2020", H.R. 7120:

https://www.congress.gov/bill/116th-congress/house-bill/7120

Text of H.R. 7120:
https://judiciary.house.gov/uploadedfiles/justice_in_policing_act_of_2020.pdf

H.R. 7120 is a lengthy bill with many provisions. Section 102 of H.R. 7120, "Qualified Immunity Reform", appears to have been copied from H.R. 7085, *but* with the addition of a clause limiting it to lawsuits "brought... against a local law enforcement officer... or a State correctional officer."

So the Pelosi bill would end qualified immunity for local police and state prison guards, but would allow (or leave it up to the courts whether to allow) the theory of qualified immunity to be used to shield Federal officials and agents, and individuals other than local police or state prison guards, from liability.

Posted by: Edward Hasbrouck, 9 June 2020, 09:45 ( 9:45 AM)

On 15 June 2020, the Supreme Court announced that it had decided not to hear any of the ten petitions before it for for review of qualified immunity.

That leaves the issue up to Congress.

Posted by: Edward Hasbrouck, 15 June 2020, 07:30 ( 7:30 AM)
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All advice and recommendations are the personal opinions of Edward Hasbrouck, and do not necessarily represent the views of my publishers, employers, or clients.