As protesters filled the streets last summer to decry the tragic killings by police of George Floyd, Breonna Taylor, Ahmaud Arbery and countless others, they brought signs and slogans with them. Poster board and cardboard pieces were lifted into the air with firm demands scrawled across them: “Justice for George,” “#SayHerName,” “I Can’t Breathe,” and “No Justice, No Peace” were familiar phrases bobbing amongst the sea of activists. As the weeks stretched on, the movement catalyzed by the hideous killing of Floyd caught on video continued to grow, with millions of people taking to the streets. Among the signs, a more specific demand began to appear: Abolish qualified immunity. 

Once an obscure legal doctrine, qualified immunity is now in the spotlight — and in the crosshairs of many activists and advocates nationwide. For decades, the doctrine has shielded police officers and other government employees from being held responsible for all sorts of malfeasance. Qualified immunity makes it nearly impossible for individuals to sue public officials by requiring proof that they violated “clearly established law.” 

In a rare show of solidarity with protesters in cities like Minneapolis, New York, and Portland, courts and state legislatures began to take notice, too — in June, Colorado lawmakers passed a bill that gutted the doctrine’s power in state courts. Multiple lower federal court decisions have also acknowledged how qualified immunity functions more as absolute immunity, and shields police officers from accountability, with even a conservative Supreme Court justice calling the doctrine into question.

The ACLU is a part of the movement to end qualified immunity once and for all, through our work advancing legislation in statehouses, combating the use of the doctrine in court, and advocating for an end to qualified immunity on the federal level. 

In the Statehouse

The brunt of law enforcement’s racial terror campaigns is felt by the Black and Brown communities that are forced to deal with outsized police presence every day. The fight to combat that harm is led by a coalition of grasstop groups that organize and advocate in city halls and statehouses across the country. In several states, including Minnesota, the ACLU has fought alongside these groups to advance reform through legislation. 

• Minnesota: The ACLU of Minnesota is working with the Institute for Justice to develop legislation that would bypass the effect of qualified immunity by making it easier for people to sue government agencies — not just individual officers — in state courts when police violate their rights. Additionally, the ACLU of Minnesota is advocating to reform the laws that allow officers like Derek Chauvin, who killed George Floyd and who had a long history of civilian complaints on his record, to keep committing violence against the community. Currently under Minnesota state law, civilian oversight boards cannot make findings of fact relating to a complaint against a police officer, impose disciplinary sanctions, or make binding recommendations. H.F. 905 would repeal the law that prevents civilian oversight boards from having these powers, allowing local governments to create empowered boards that can take tangible action against officers accused of misconduct. Removing this barrier at the local level is a first step toward independent, community-informed oversight of policing and public safety.

   

• Illinois: After decades of unacceptable police abuse and horrors, current Illinois law still protects out of control officers from being held accountable for violating people’s constitutional rights. These protections do not serve good police officers; they do not serve our communities; they only serve bad apples in Illinois’ police ranks. A recent poll shows that 91 percent of Illinois voters are strongly supportive of legislative efforts that hold police accountable for misconduct and 69 percent of voters agree that reform is necessary now because of racial bias in policing. Reflecting this overwhelming public support, the ACLU of Illinois supports H.B. 1727 — the Bad Apples in Law Enforcement Accountability Act — which removes the protections of qualified immunity in state court so that police officers can be held accountable when they violate someone’s constitutional rights.

   

• New Mexico: New Mexico has one of the highest rates of fatal police shootings in the country. The New Mexico Civil Rights Act creates an avenue for New Mexicans to bring claims for damages in state court against police officers and other public officials who violate the rights guaranteed to them under the New Mexico Constitution. The bill specifically prohibits the use of qualified immunity. 

In the Courts 

Last term, multiple petitions before the Supreme Court called into question whether qualified immunity should be limited or abolished altogether. 

• The court grouped three petitions together, including ours in Baxter v. Bracey, and then repeatedly delayed acting on them. It seemed possible that maybe the court was finally going to meaningfully tackle qualified immunity. Then, on June 15, 2020, mere weeks after Derek Chauvin killed George Floyd and millions of people flooded the streets to protest police brutality, the Supreme Court denied the petitions. Justice Thomas was the only one to write anything on the occasion of the court declining all the petitions; he wrote to protest the denial of certiorari in our case, Baxter. For a brief moment it looked like the cross-ideological coalition we are part of might have convinced four justices to take a case. Then the bubble burst.
• Five months later, a new glimmer of hope emerged. In November 2020, the court granted, reversed, and remanded a qualified immunity decision out of the Fifth Circuit in Taylor v. Riojas. Trent Taylor was incarcerated in Texas and he spent six days in heinous conditions: The first cell where he was detained was covered almost floor to ceiling in human feces, and he was forced to sleep naked in sewage in the freezing cold in his second cell. The officers responsible for this gross violation were granted qualified immunity by the court, which reasoned that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste … for only six days.” 

The Supreme Court disagreed: “No reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.” As law professor Joanna Schwartz explains, Hope v. Pelzer is the only other case in which “the Supreme Court ruled that qualified immunity could be denied in the absence of a prior court opinion on point … Since 2002, the court had only paid lip service to the notion that qualified immunity can be defeated without a prior case on point.” 

• Only a few months later, the court did it again in McCoy v. Alamu. McCoy was incarcerated in Texas when an officer attacked him for no reason. The Fifth Circuit granted qualified immunity based on its understanding that the defense is especially difficult to overcome in excessive force cases. But the Supreme Court granted McCoy’s petition, vacated the Fifth Circuit’s opinion, and remanded the case to the lower court with instructions to reconsider the case in light of Taylor.   
• Taylor and McCoy have ignited a debate among qualified immunity nerds (that’s a compliment), as Adam Liptak has reported. Professor Schwartz argues that “the court is indicating a change” and “appears to be sending a message that lower courts can deny qualified immunity for clear misconduct, even without a case with identical facts.” Jay Schweikert at the CATO Institute, with whom we have worked closely on qualified immunity reform efforts, believes “the Supreme Court has decided to forgo reconsideration of the doctrine in favor of small doctrinal clarifications.” Anya Bidwell and Patrick Jaicomo at the Institute for Justice are the most optimistic, characterizing these as the “early days in the reconsideration — if not ultimate rejection — of the court-created doctrine of qualified immunity.”

We’re very glad to see that there are cracks developing in the shield of qualified immunity. But these cracks are not nearly enough. The ACLU will continue to fight in court to see the doctrine weakened and ultimately dismantled, as we did recently in yet another horrific Fifth Circuit case. 

• One ongoing case that highlights both the absurdity of qualified immunity and the extent to which officials may go under its protection is Black Lives Matter D.C. v. Trump, the ACLU-DC’s class action lawsuit challenging the vicious and unprovoked attack on civil rights demonstrators in Lafayette Square last June. The defendants in the case were sued under Section 1983 and Bivens, which is another type of case where officers can use qualified immunity. From the Park Police officer who beat a journalist as she was escaping the protest, all the way to former Attorney General Bill Barr, they have all invoked qualified immunity to avoid liability for their misconduct.

In moving to dismiss our case, defendants have argued that their conduct cannot be “clearly established” as unconstitutional — thus defendants are shielded by qualified immunity — unless plaintiffs can point to a specific case involving “a presidential appearance, an alleged dispersal order emanating from the Attorney General himself, a city-wide curfew and emergency order” and more. They are wrong, but under qualified immunity, we can’t be sure a federal court will see it our way and refuse to countenance brutality with impunity.  

In Congress

Qualified immunity reform is needed to ensure that police can be held accountable after they violate the constitution. But we also need reform on the front end that prevents police brutality before it happens. An important first step is to set clear national standards that require all police departments to adhere to common-sense limitations on use of force and best practices. 

• President Biden has already committed to the creation of a national, model use-of-force standard as one of his racial equity priorities. The ACLU is currently lobbying Congress to pass legislation that ensures this model standard truly conforms to the best practices in the field by embracing the principles set forth in the PEACE Act, which would permit officers to use force only when necessary, proportional, and as a last resort, after less extreme alternatives are exhausted. That standard would not only apply to federal agents, it would provide incentives to state and local police departments to adopt the rule.  
• Ayanna Pressley’s End Qualified Immunity Act would end qualified immunity for state and local actors. 

Qualified immunity fosters an environment where government agents, including police, may feel empowered to violate people’s rights with the knowledge they will face few consequences. This erodes relationships with the community and diminishes the system’s credibility. Under qualified immunity, lives can be taken with impunity. It’s past time to heed the protesters’ signs, and end this doctrine once and for all.

Sheriff Kristin Graziano’s historic election showed widespread community support for the need to reimagine public safety in Charleston County, South Carolina — including the need to invest in people and communities instead of police and incarceration. Sheriff Graziano is moving forward with her commitments to reduce the size, scope, and role of the Charleston County Sheriff’s Department, starting with ending the department’s 287(g) agreement with Immigration and Customs Enforcement. She joined our podcast this week to discuss this choice, and the work ahead.

Sheriff Kristin Graziano Wants to End Racist Policing

Sheriff Kristin Graziano Wants to End Racist Policing

Last summer, protesters and organizers called for a racial reckoning and a change to how our country's policies. In the wake of those protests, a sheriff’s race in Charleston County, South Carolina took shape with a reform-minded candidate Kristin...

Last summer, protesters and organizers called for a racial reckoning and a change to how our country's policies. In the wake of those protests, a sheriff’s race in Charleston County, South Carolina took shape with a reform-minded candidate Kristin...

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As Sheriff Graziano takes these steps to build a more accountable department, a corresponding movement has gained strength to reimagine public safety in the City of Charleston.

Today in Charleston, nearly one-third of the city’s residents face “shelter poverty” — meaning they can’t afford basics like food, clothing, or transportation after paying to keep a roof over their heads. Charleston residents face an array of challenges: high housing costs force people to forgo other basic needs, pedestrians and cyclists face one of the highest fatality rates in the country, mental health and substance use treatment services are sorely lacking, and gentrification is pushing Black and Brown communities out of our once diverse city at lightning speed.

Yet instead of investing in solutions to these pressing public safety needs, the city is pouring 26 percent of all city budget funds into the Charleston Police Department. This is despite the fact that 86.2 percent of recent arrests were for nonviolent, largely low-level offenses like marijuana possession or open alcohol containers. Further, these arrests were carried out with a staggering racial bias.

The real world harms of this budget decision are compounded by the history of racist policing in Charleston. As Sheriff Graziano herself notes, America’s first police force was established in Charleston, created by white people to maintain control over Black enslaved people living inside the city. It was a slave patrol. Since that time, policing in Charleston has continued its role as a tool to oppress Black communities, from enforcing convict leasing, Jim Crow laws, and the war on drugs, to violently repressing the movement for Black lives.

In response to this crisis, a diverse coalition of Charleston-based organizations, including the ACLU of South Carolina, came together to form the Charleston People’s Budget Coalition. The coalition’s mission is to establish an equitable city budget, eliminate poverty and racial disparities, and shift power to create true accountability with city officials. Coupled with the changes to the Charleston County Sheriff’s Department, this community-led advocacy has the potential to turn Charleston into a model for reimagining public safety.

Today, the House Committee on Oversight and Reform is holding a hearing on a bill to establish statehood for Washington, D.C. Since the last congressional hearing on statehood in September 2019, the COVID-19 pandemic, protests in D.C. after the killing of George Floyd, and the insurrection attempt at the U.S. Capitol building have all highlighted how the lack of full statehood rights continues to cause serious harm to the health and safety of D.C. residents. These events underscore the urgency with which our country must grant full and equal rights to the 712,000 residents of D.C.

Historically, Congress has treated Washington, D.C. in the same manner as the states when it comes to federal financial assistance, such as federal grants, Medicare reimbursement, and funding for highways, education, and food assistance. However, when Congress passed a $2 trillion COVID-19 stimulus bill in March of 2020, members of Congress opted to treat the District of Columbia as a territory, shortchanging D.C. residents a full $755 million in relief at a time when D.C. had more COVID-19 cases than 19 other states. During this critical public health crisis, D.C. was left at the mercy of Congress, a body in which its residents hold no voting representation, and Congress chose to withhold more than half of the aid it provided to every other state.

The $755 million was retroactively made whole in the American Rescue Plan Act of 2021, passed by Congress in March, more than a full year after passage of the first stimulus bill. The 712,000 residents of D.C. need test kits, hospital supplies, and emergency relief for businesses as much as every other American trying to survive the COVID-19 pandemic, but without statehood, the residents of D.C. lack full representation in the representational democracy making key life or death decisions during a global health crisis.

Other recent examples show the harm caused by D.C.’s lack of full authority over its own National Guard and law enforcement due to lack of statehood. In the wake of the killing of George Floyd, D.C. residents and others from around the region exercised their right to free speech and protested against police brutality. These demonstrators were met with brutal force by military personnel when the president used his uniquely exclusive control over the D.C. National Guard to deploy those troops to the area, in addition to scores of law enforcement officers.

On June 1, 2020, President Trump ordered those federal officers to forcefully clear peaceful protestors out of Lafayette Park and the surrounding streets in Washington, D.C., using batons, rubber bullets, and pepper spray — literally tear gassing civil rights protestors in front of the White House so he could take a photo in front of a church. Additionally, the president has the ability to take over D.C.’s own local police force for 48 hours, and that time period may be extended with mere notification to members of Congress who oversee District affairs — something President Trump threatened to do repeatedly in 2020.

Another striking example came on Jan. 6, 2021, when a violent mob entered the U.S. Capitol during the tallying of Electoral College votes for the 2020 presidential election to overturn the results on behalf of Donald Trump. Unlike every state in the country, D.C. does not have the authority to deploy its own National Guard troops; instead, D.C. must rely on the Department of Defense, as the D.C. National Guard always remains under federal control. During the attack, approval for National Guard troops to stop the violent mob came after a lengthy delay by the Trump administration, long after the attack was underway and in a manner that put D.C. residents and everyone in the building in danger. Five people died in the course of the mob’s assault on the Capitol.

While restraint should be exercised in deploying National Guard troops, and uncertainties remain around the exact reasons for the delay, what is clear is that the delay in the use of the National Guard on Jan. 6 stands in stark contrast to the extensive and aggressive deployment of the D.C. National Guard on the streets of D.C. by the federal government during Black Lives Matter demonstrations during the summer of 2020.

In 1788, James Madison wrote that the inhabitants of the yet-to-be-chosen federal district should have a “voice in the election of the government which is to exercise authority over them.” More than 200 years later, residents of the District of Columbia still lack full representation in Congress. Events over the past year reinforce how D.C.’s lack of statehood continues to wreak havoc on the health, safety, and daily lives of its 712,000 residents. The continuing denial of representation for District residents is an overt act of voter suppression with roots in the Reconstruction era. It is beyond time to rectify this by giving D.C. the true autonomy and self-governance that comes with statehood.

You can read our full testimony here.