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Markey Bill Backed by Sanders and Warren Seeks to Abolish Qualified Immunity

The antiquated legal doctrine has insulated police for decades from serious prosecution of even wanton misconduct.

Police in formation during a protest on July 1, 2020, in New York City.

In the wake of the recent killings of George Floyd in Minnesota and Breonna Taylor in Kentucky — which sparked a national uprising against racial injustice and police violence — Sens. Ed Markey (D-Mass.), Bernie Sanders (I-Vt.), and Elizabeth Warren (D-Mass.) on Wednesday introduced a new bill in the U.S. Senate that would end “qualified immunity” for law enforcement officers accused of excessive force and violating the constitutional rights of civilians.

An antiquated legal doctrine that has insulated police for decades from serious prosecution of even wanton misconduct, Markey said in a statement that qualified immunity “makes it almost impossible for a victim of excessive force by a police officer to hold that officer accountable in a court of law.” Such legal protection, given the harm it has caused and the manner to which it roadblocks justice, said Markey, must come to an end.

“If we want to change the culture of police violence against Black and Brown Americans,” Markey explained, “then we need to start holding accountable the officers who abuse their positions of trust and responsibility in our communities. That means once-and-for-all abolishing the dangerous judicial doctrine known as qualified immunity.”

Spearheaded by Markey, the “Ending Qualified Immunity Actis co-sponsored by Sanders and Warren in the Senate and serves as a companion piece of legislation previously introduced in the House by Reps. Justin Amash (I-Mich.) and Ayanna Pressley (D-Mass.).

While the demand for ending qualified immunity has been longstanding, the doctrine has found staying power in the nation’s courts and a political commitment by many U.S. politicians and lawmakers to shield police from the on-the-job misconduct. As CNN reports:

Though the Supreme Court could still announce that it will take a closer look at qualified immunity at some point, the court has decisively signaled an unwillingness in the short term to overturn its previous rulings, punting the issue to Congress.

In recent years, legal scholars, judges and justices on all sides of the ideological spectrum have criticized the legal doctrine, arguing that it is not grounded in the proper legal authorities and too often shields officials from accountability. It has divided lawmakers, however, finding broad support across the Democratic caucus and resistance within the GOP.

Specifically, according to Markey’s office, the new legislation:

  • Amends 42 U.S.C. § 1983 (“Section 1983”) to explicitly state that the qualified immunity doctrine invented by the Supreme Court does not provide public officials that violate civil rights with defense or immunity from civil liability for their actions; and
  • Clarifies Congress’ original intent for Section 1983 and notes the history and necessity of this protection.

Facing an upcoming primary challenge to his Senate seat from a more right-wing Democrat Rep. Joe Kennedy III (D-Mass.), Markey’s leadership on the issue of police reform was celebrated in the wake of the bill’s introduction:

With Black Lives Matter demonstrations nationwide demanding serious and tangible reforms to policing, ending qualified immunity has been a central tenet when it comes to holding individual police accountable for violent criminal acts against the very people they are meant to serve and protect. Without such a reform, say critics, it is impossible to change the culture of police departments who often act as though they are above the laws which they are otherwise duty-bound to enforce.

“At a time when unprecedented numbers of people are demanding an end to police murder, brutality, and impunity, we have got to finally abolish ‘qualified immunity,'” said Sanders. “This is not a radical idea: Police officers must be held fully accountable for abuses they commit — no one is above the law. If we are serious about real police reform, the Senate has got to pass our Ending Qualified Immunity Act.”

Warren said that “ending the racist violence that has stolen far too many Black lives must begin with accountability’ for police officers and departments as a whole.

“For too long,” Warren said, “qualified immunity has shielded police officers who have engaged in unconstitutional and appalling conduct from being held accountable in court — it’s past time to end this doctrine. I’m proud to join my colleagues in cosponsoring this bill and putting forward reforms to help end the systemic racism that plagues policing in America.”

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