[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
EXAMINING CIVIL RIGHTS LITIGATION REFORM, PART 1: QUALIFIED IMMUNITY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
THURSDAY, MARCH 31, 2022
__________
Serial No. 117-61
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2022
48-302
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
AMY RUTKIN, Majority Staff Director & Chief of Staff
CHRISTOPHER HIXON, Minority Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
DEBORAH ROSS, North Carolina, Vice-Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana, Ranking
HENRY C. ``HANK'' JOHNSON, Jr., Member
Georgia TOM McCLINTOCK, California
SYLVIA R. GARCIA, Texas CHIP ROY, Texas
CORI BUSH, Missouri MICHELLE FISCHBACH, Minnesota
SHEILA JACKSON LEE, Texas BURGESS OWENS, Utah
JAMES PARK, Chief Counsel
C O N T E N T S
----------
Thursday, March 31, 2022
Page
OPENING STATEMENTS
The Honorable Steve Cohen, Chair of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties from the State
of Tennessee................................................... 2
The Honorable Mike Johnson, Ranking Member of the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties from the
State of Louisiana............................................. 4
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 5
WITNESSES
The Honorable Jon O. Newman, Senior Circuit Judge, United States
Court of Appeals for the Second Circuit
Oral Testimony................................................. 8
Prepared Testimony............................................. 10
Mr. Alexander A. Reinert, Max Freund Professor of Litigation and
Advocacy; Director, Center for Rights and Justice; Benjamin N.
Cardozo School of Law
Oral Testimony................................................. 19
Prepared Testimony............................................. 22
Ms. Tiffany R. Wright, Affiliated Faculty, Thurgood Marshall
Civil Rights Center, Howard University
Oral Testimony................................................. 32
Prepared Testimony............................................. 34
Mr. Rafael A. Mangual, Senior Fellow and Head of Research,
Policing and Public Safety Initiative; Contributing Editor,
City Journal; Manhattan Institute
Oral Testimony................................................. 38
Prepared Testimony............................................. 41
Mr. Jay Schweikert, Research Fellow, Project on Criminal Justice,
Cato Institute
Oral Testimony................................................. 47
Prepared Testimony............................................. 50
Mr. Arthur Ago, Director, Criminal Justice Project, Lawyers'
Committee for Civil Rights Under Law
Oral Testimony................................................. 60
Prepared Testimony............................................. 62
Mr. Frederick L. Thomas, National President, National
Organization of Black Law Enforcement Executives
Oral Testimony................................................. 82
Prepared Testimony............................................. 84
Mr. William J. Johnson, Executive Director and General Counsel,
National Association of Police Organizations
Oral Testimony................................................. 91
Prepared Testimony............................................. 94
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Materials submitted by the Honorable Steve Cohen, Chair of the
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties from the State of Tennessee, for the record
A statement from the Constitutional Accountability Center (CAC) 102
A statement from the Major Cities Chiefs Association........... 110
A statement from Greg Champagne, Sheriff, St. Charles Parish,
Louisiana; Past President and Chair, Legal Affairs Committee,
National Sheriffs' Association, submitted by the Honorable Mike
Johnson, Ranking Member of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties from the State
of Tennessee, for the record................................... 118
Materials submitted by the Honorable Sheila Jackson Lee, a Member
of the Subcommittee on the Constitution, Civil Rights, and
Civil Liberties from the State of Texas, for the record
An article entitled, ``1,065 people have been shot and killed
by police in the past year,'' The Washington Post............ 144
An article entitled, ``Full list of Black people killed by
police in 2021,'' Newsweek................................... 153
A document entitled, ``Cities that have Defunded the Police,''
Committee on the Judiciary Republicans, submitted by the
Honorable Mike Johnson, Ranking Member of the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties from the
State of Louisiana, for the record............................. 164
APPENDIX
A document entitled, ``Qualified Immunity Fact Sheet,'' NAACP
Legal Defense and Educational Fund, submitted by the Honorable
Steve Cohen, Chair of the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties from the State of Tennessee,
for the record................................................. 168
EXAMINING CIVIL RIGHTS LITIGATION REFORM, PART 1: QUALIFIED IMMUNITY
----------
Thursday, March 31, 2022
U.S. House of Representatives
Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to call, at 10:04 a.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Cohen
[Chair of the Subcommittee] presiding.
Members present: Representatives Nadler, Cohen, Raskin,
Ross, Johnson of Georgia, Garcia, Bush, Jackson Lee, Jordan,
Johnson of Louisiana, McClintock, Roy, Fischbach, and Owens.
Staff present: John Doty, Senior Advisor and Deputy Staff
Director; David Greengrass, Senior Counsel; Moh Sharma,
Director of Member Services and Outreach & Policy Advisor;
Jordan Dashow, Professional Staff Member; Cierra Fontenot,
Chief Clerk; Gabriel Barnett, Staff Assistant; Merrick Nelson,
Digital Director; James Park, Chief Counsel for Constitution;
Agbeko Petty, Counsel for Constitution; Will Emmons,
Professional Staff Member/Legislative Aide for Constitution;
Keenan Keller, Chief Counsel for Crime; Ella Yates, Minority
Member Services Director; Betsy Ferguson, Minority Senior
Counsel; Caroline Nabity, Minority Senior Counsel; James
Lesinski, Minority Senior Counsel; and Kiley Bidelman, Minority
Clerk.
Mr. Cohen. Good morning. The Committee of the Judiciary
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties will come to order. Without objection, the Chair is
authorized to declare a recess of the Subcommittee at any time
or do just about anything that I want with the exception of the
Ranking Member making me think about it.
I welcome everyone to today's hearing on Examining Civil
Rights Litigation Reform, Part 1: Qualified Immunity. Before we
continue, I would like to remind Members we have established an
email address distribution list dedicated to Members for
circulating exhibits, motions, or other written materials
Members might want to offer to the hearing. If you would like
to submit those, you know how to do it.
All Members and Witnesses, both those in person and those
appearing remotely, we would ask you to mute your microphones
when you are not speaking. This will help prevent feedback and
other technical issues. You may unmute yourself when you seek
recognition.
I will now recognize myself for an opening statement.
Today's hearing is the first in a series of hearings that this
Subcommittee will hold to examine potential reforms to Federal
civil rights litigation. Future hearing topics may include
examinations of proposals to impose vicarious liability on
States and municipalities, respond-eat superior, and the
possibility of replacing Bivens liability with the Federal
statutory analog of 42.1983.
We begin this series, however, by focusing on the entirely
judicially created doctrine of qualified immunity. This
doctrine shields defendants in constitutional tort cases from
liability even when they have violated a person's
constitutional rights if a court finds that a conduct, though
unconstitutional, does not violate clearly established law.
Clearly established law is created by the courts and the courts
can do that although my Senator says if it is not written in
the Constitution, it must not be a right and something we have
to pay attention to. My Senator is not on the Supreme Court.
My hope is that this hearing will serve as an educational
function, teaching Members and the general public about what
the law actually is in qualified immunity in the face of much
disinfor-mation about this doctrine, also if we use this
hearing to consider reasonable critiques of the doctrine, as
well as potential responses by Congress, because we can amend
it.
To fully appreciate the implications of qualified immunity
doctrine in civil rights cases, generally, at least misconduct
cases, in particular, which is where we hear most about it,
that makes up a significant portion of the cases in the Federal
courts, it is important to step back and understand the genesis
of the central idea underlying the statutes at issue in
42.1983.
Section 1983 provides a Federal cause of action for a
person to seek monetary relief from State or local officials
who acting under the color of State law violate that person's
constitutional or other Federal right. Congress passed the
measure as part of the Ku Klux Klan Act of 1871, three years
after the 14th Amendment's ratification, and six years after
the South laid down its guns and said olly olly oxen free, we
are finished.
It did so out of concern and notwithstanding the 14th
Amendment's guarantee of equal protection laws for all
Americans, State and local government officials including
police officers at the time, not only acquiesced then, but
participated and perpetrated racial violence and other forms of
racial discrimination against Black Americans. This conduct
eventually continued under Jim Crow laws, less virulent, but
just as present in other forms.
By providing a cause of action, Congress intended for
victims to receive some measure of justice for the violation of
Federal rights by State and local government officers. As the
Constitution Accountability Center noted in its written
submission to the Subcommittee, Congress also intended for
private litigation to be a means of deterring constitutional
violations by imposing financial liability on the offenders,
sanctions so to speak. The qualified immunity defense as
applied over the last several decades, subverts Congress'
intent at passing section 1983 by effectively making it
impossible in all but a handful of cases for victims of
constitutional or civil rights violations to obtain a remedy or
even just have their day in court. This is so because courts
have persistently narrowed the scope of the clearly established
standards over the course of decades. In effect, to defeat a
qualified immunity defense, a civil rights plaintiff would have
to show that there was precedent existing at the time of the
alleged civil rights violation that was precedent, that was
almost identical, identical to the plaintiff's case, not only
legally, but factually, through an eye of a needle. This can
have terrible consequences from legal policy and moral
perspectives. More importantly, victims are left with no remedy
or even the chance to develop the facts in their cases and face
a dismissal of their lawsuits based on qualified immunity, the
defense that can be raised at any stage of litigation.
In addition, egregious misconduct that could amount to
unconstitutional actions by police or other officials can go
unpunished and undeterred in the future. This threatens to
undermine the remedial and deterrent purposes of 1983.
Also, by allowing courts to avoid merits decisions on
whether particular challenged conduct is unconstitutional,
allowing them instead to simply answer the question of whether
the defendant's conduct violated clearly established law of the
qualified immunity doctrine, stymies the development of case
law interpreting and defining the contours of constitutional
law. This does a disservice to police officers, other
government officials, and all other citizens.
These consequences are particularly tragic when weighed
against the minimal benefits of qualified immunity in the
policing context. For example, other areas of substantive and
procedural law already account for good faith conduct by
officers acting under exigent circumstances, but the harm seems
to outweigh the good when it comes to qualified immunity in
police misconduct cases.
In light of the forgoing, I hope we will hear thoughtful
solutions to the problems with qualified immunity doctrine. The
solutions could range from full elimination of qualified
immunity in section 1983 cases or more targeted curtailment of
the defense and other potential measures.
Both last Congress and this Congress, I joined Full
Committee Chair Nadler, Representative Bass, and other
colleagues in cosponsoring the George Floyd Justice in Policing
Act. It certainly seems like an oxymoron, doesn't it? George
Floyd Justice in Policing Act which among other things would
have eliminated qualified immunity for law enforcement
officers.
Last Congress, I also introduced H.R. 1489, the Civil
Rights Enhancement Law Enforcement Accountability Act of 2021.
This legislation will make the employers of any law enforcement
officer vicariously liable under 1983 for the officer's
violations of a person's rights, while also preserving
individual officer's liability.
To be clear, I do not intend this proposal to be
alternative to address qualified immunity, but rather to be a
complement in doing so, although it could be an alternative
because it still would have the ability of the government if
they are liable for the damages, they will make sure that the
officers are taught, taught, and taught, and reinforced to do
the right thing and what the right thing is.
I am a proponent and knowledgeable in government and
society over the years of police and law enforcement enforcing
and continuing to be a positive force and an underpinning of
the rule of law which is what makes our country so great, and
society has to have rules of law to continue and to prosper and
protect its citizens. So, we want to, as the President's budget
will, fund the police. We don't want police to be used as
pinatas in courts, but we do want police to do the right thing.
If they don't do the right thing, there needs to be a source
of--a remedial source to remind them of the right thing and to
make sure it undermines. Respondeat superior could do as well.
I thank our distinguished panel of experts for being here
and I look forward to hearing their testimony which promises to
be a substantive and meaningful debate on a topic of great
national importance.
I would now like to recognize the Ranking Member of the
Subcommittee, the gentleman from Louisiana, Mr. Johnson, who
will save me from doing anything beyond calling recesses, for
his opening statement.
Mr. Johnson of Louisiana. Thank you, Mr. Chair. I thank our
witnesses for being here this morning and I also want to take
just a moment to honor the great men and women in law
enforcement and recognize the essential role they play in
keeping our country safe. You have an ally in me and my
colleagues, certainly on this side of the aisle.
At this hearing, we are going to discuss policing in
America and whether the doctrine of qualified immunity should
remain intact. For anybody who is not aware, there are some
people who watch these proceedings at home, qualified immunity
is the doctrine that protects law enforcement officers from
civil liability for honest mistakes they make, while serving in
one of the most high-pressure jobs in the world.
The vast majority of police officers in this country are
self-sacrificing public servants. They put their lives at risk
every single day when they put on that badge. I know this from
my own experience. I grew up at the Fire and Police Training
Academy in my hometown of Shreveport, Louisiana where my dad
was a training officer and assistant chief before he was
critically injured and permanently disabled in the line of
duty.
If we are going to ask our officers to potentially make the
ultimate sacrifice for the safety of others, we have to provide
them with legal protections that qualified immunity affords,
period, full stop.
However, despite the sacrificial service and bravery of law
enforcement, there are some Democrats in Congress who continue
to push the false and outrageous narrative that police are
actually somehow to be regarded as the enemy. We all saw this
over the last couple of years and as we all know, there are
some on the progressive left, some elected Members of Congress,
who have gone as far as to call for the full-scale abolition of
police, if you can imagine that. It is insanity.
My Republican colleagues and I are here to tell you that
they are wrong, stating the obvious. We need police officers,
and we must maintain law and order. Nothing makes this more
apparent than the spike in violent crime and homicide that we
have seen in Democrat-led cities that have defunded their
police departments. In 2021, the homicide rate rose by five
percent from the previous year. If you think that number is
unacceptable, wait until you hear the next one. In 2020, the
homicide rate rose by 29 percent over the previous year. Yet,
even in the face of this madness, police officers wake up every
single day. They kiss their loved ones goodbye and they show up
for work.
Meanwhile, the defund the police movement, the pandemic,
and COVID vaccine mandates have gutted police recruitment and
retention efforts across the country. I know many of you have
experienced that. At a time when departments are struggling
just to fill open positions and make our communities safer, we
still have Democrats here determined to expose our officers to
civil liability for simply doing their jobs.
There are very real common-sense reforms that all of us
acknowledge that we can make to policing in America. We have
had thoughtful discussion about that. That is why I joined the
large majority of my Republican colleagues in supporting the
Justice Act this last Congress. The Democrats in charge made
sure that that bill was dead on arrival. They squandered what
we saw as a crucial opportunity to make positive change and
build better relationships in our increasingly divided
communities. This just shows the radical left calls for reform
and nothing more than political talking points sadly.
So, what should we be talking about today instead of
eliminating qualified immunity, we should discuss ways that we
can further support our police officers. We should encourage
them to continue building stronger relationships with their
communities. We should give law enforcement the tools and
training they need to maintain law and order. Their role is
critical. This is a critical part of the fabric of our nation
and as we all know, that fabric is being frayed right now in
unprecedented ways.
We are the greatest nation in the history of the world and
the only way that we will continue that, maintain that, is if
we back the blue. It really is that simple to us. Qualified
immunity is a big part of this.
So, I look forward to the discussion day and hearing from
our Witnesses. I know some of you have done some very important
work in this arena and I yield back.
Mr. Cohen. Thank you. Before I recognize Mr. Nadler, I am
just going to take a little privilege to the Chair. I cringe,
Mr. Johnson, when our Members talk about defunding the police.
I was a police legal advisor. Worked in the police department
in Memphis for three and a half years. My cringes are no
different than your cringes when your Members suggest that
Members of Congress, and particularly on your side the implied
suggestion is, are engaged in sex orgies and cocaine doing. So,
we got them on both sides.
Mr. Nadler, you are recognized. You haven't been to any
orgies lately, have you?
Chair Nadler. Not lately. Thank you, Mr. Chair. Of course,
we need the police and of course, we need the police to do
their jobs and of course, we need the police to do their jobs
legally. That is what we are here to talk about today.
More than a century and a half ago, Congress passed one of
the earliest civil rights laws in our nation's history, the Ku
Klux Klan Act of 1871. Section 1 of that law now codified at 42
U.S.C. 1983 empowers individuals to sue State and local
government officials who violate their Federal rights under
color of State law. This private right of action is a critical
means of holding government officials accountable.
To fully appreciate Congress' intent in passing the
statute, we must understand the historical backdrop against
which it created section 1983's right to sue. Section 1983
originated from the unwillingness of State officials to protect
and enforce the constitutional rights of African Americans
after the Civil War. During this period, the Ku Klux Klan and
its allies used racial violence and terror to undue the gains
of Reconstruction. Under the cover of darkness and cloaked in
hoods to conceal their identity, Klan members roamed the South
with impunity, mutilating and murdering African Americans in
bloody massacres. This barbarity often went unpunished, as
former Confederate States did little to stop the violence. In
fact, law enforcement frequently took part in the acts
themselves.
The complicity of these local governments left victims with
no recourse, until Congress responded with section 1983. In
drafting this statute, Congress sought accountability from
State and local officials by arming victims of State-sponsored
abuse with a Federal court remedy. Unfortunately, the
accountability that Congress sought to achieve remains largely
unrealized. This is in large part because of court decisions
applying and expanding legal precedents for defendants through
the doctrine of qualified immunity, which shields State and
local officials from liability unless they violate ``clearly
established'' law.
Notably, the text of section 1983 says nothing about
qualified immunity, nor is it written in the Constitution. The
doctrine is purely a creation of the Supreme Court. As you will
hear from some of our Witnesses today, this standard imposes a
substantial obstacle to recovery for people whose civil rights
have been violated.
Since the Supreme Court first announced the current
qualified immunity standard, it has found that a government
official violated clearly established law in only three
instances. This number says it all. This constitutional scholar
and litigator, David Ganz, aptly stated, the Supreme Court
``converted a statute designed to open the courthouse doors to
those aggrieved by official abuse of power into a statute that
both the courthouse doors firmly shut immunizing wrongdoers
rather than holding them accountable.''
Indeed, qualified immunity subverts the very purpose of
section 1983 and denies justice to victims of State-sponsored
abuse. We have seen how the doctrine absolved police officers
of the most egregious conduct. We have Witnessed Black and
Brown lives be devalued as certain officers Act with impunity.
This is precisely why I joined Congresswoman Karen Bass in
introducing the George Floyd Justice in Policing Act which
would, among other things, eliminate the defense of qualified
immunity for Federal, State, and local law enforcement
officers.
As Chief Justice John Marshall noted, ``We are a nation
that has been emphatically termed a government of laws and not
of men.'' He also warned, however, that ``It will certainly
cease to deserve this high appellation if the laws furnish no
remedy for the violation of a vested legal right.''
If we are to heed this warning, State and local government
officials who infringe on the constitutional rights of their
citizens must be held accountable. The doctrine of qualified
immunity currently stands in the way. It is imperative,
therefore, that we address this issue so that all Americans can
enjoy equal protection of the laws as Congress intended in
1871.
I want to welcome our Witnesses. I look forward to their
testimony of this important topic and I yield back the balance
of my time.
Mr. Cohen. Thank you, Mr. Nadler. Mr. Jordan is not
present, and I don't think he was going to give a statement, so
we will proceed with our Witnesses. I thank each of you
participating in today's hearing, both virtual and in person.
I will introduce each Witness, and after the introduction
will recognize him or her for their oral testimony. For those
who are present here, there is a red light that says you are
finished. A green light says you are on. Yellow light says you
have got a minute. Get it together.
Your statements that you have will be entered in the record
in their entirety and you have five minutes. To help you stay
within that time you have got your lights. For Witnesses
testifying remotely, there is a timer in the Zoom view that
should be visible somewhere in your screen. I think you have to
do the character that allows you to see everybody and then you
have got something up there on the right-hand side.
Before proceeding with testimony, I remind all the
Witnesses, that if you say anything that is not true, Mueller
will push the buzzer and you will be subject possibly to
penalties under law, section 1001, title 18.
Our first Witness is the Honorable John Newman who is
coming to us through the miracle of Zoom. Judge Newman serves
on the United States Court of Appeals for the Second Circuit.
He was appointed to the Second Circuit in 1979, served as its
Chief Judge from 1993-1997, and assumed senior status in 1997.
He previously was a District Court Judge for the District
of Connecticut, the home of Rosa DeLauro and others. He was
appointed to that position in 1971.
From 1964-1969, Judge Newman served as United States
Attorney for the District of Connecticut and I guess he is
cheering for Connecticut in the basketball game, the women
tomorrow night. I will be, too.
Prior to that, he worked for Senator Abraham Ribicoff of
Connecticut, a great United States Senator. He was his
Administrative Assistant and he worked for Mr. Ribicoff at HEW
where he was a secretary. Before that, he was Governor of
Connecticut.
Judge Newman served as a Senior Law Clerk to Chief Justice
Earl Warren of the United States Supreme Court, was a Law Clerk
of Judge George T. Washington, United States Court of Appeals
for the District of Columbia. Served in the U.S. Army Reserve
from 1954-1962. I presume he got to know Toby Moffett who was a
Congressman back in the day from Connecticut.
Judge Newman received his LLB from Yale Law School and his
B.A. from Princeton University. Not shabby.
Judge Newman, you are recognized for five minutes.
STATEMENT OF THE HONORABLE JON O. NEWMAN
Judge Newman. Thank you very much, Chair Nadler, Chair of
the Subcommittee Cohen, Vice Chair Ross, and Ranking Member
Johnson. I appreciate the Subcommittee's invitation to testify
on a topic that has interested me ever since I started writing
about it 44 years ago.
As a District Judge, I became familiar with the topic,
having conducted 30 police misconduct trials under section
1983. As a matter of fact, I testified on this topic before
this very Committee 30 years ago at the invitation of then-
Chair Don Edwards. I understand the topic today focuses
primarily on qualified immunity.
I have two suggestions to make to the Committee which
perhaps anticipate what you are going to do with in the future,
but with your permission, I will present them today because
they have a distinct bearing and relationship to the qualified
immunity issue.
The two proposals are one, to establish employer liability
for the constitutional violation by an employee. The second is
to permit the United States to bring suit on behalf of a victim
whenever there is a constitutional violation by a municipal
employee.
First, as to employer liability, cities today are liable
for the torts on all their employees with one notable
exception. For example, if the driver of a garbage truck
injures a pedestrian, the city is liable. The city is the
defendant. The city is liable and if there is a recovery, the
city pays.
Ironically, the only tort for which a city is not liable is
the constitutional violation of a victim's rights. That seems
to be a very odd set of circumstances. Now, I understand there
is theMonell case which says a city can be liable, but as
everyone understands who is familiar with it, that is a very
limited doctrine. There has to be proof of a policy of
promoting misconduct and plaintiffs hardly ever succeed in
that.
I also understand there is an indemnity in many cities,
either by labor contract or by State law or by custom, but the
indemnity is not a substitute for holding the city liable for
this reason. In the first place, in the trials I ran, the city,
there was indemnity if there ever was a recovery by the victim,
the city paid it, but the jury didn't know that. The city was
not a defendant in the courtroom. So, the jury was often
reluctant to impose liability on a police officer, unaware that
the city, in fact, would pay.
Now, if you create employer liability, admissible
liability, as we do for all other torts, it will have a
profound effect on the conduct of police misconduct trials.
Number one, you wouldn't even need qualified immunity because
the victim would sue the city. There would be no point in suing
the police officer. In fact, if you establish employer
liability, you don't even need liability of the police officer.
You could do it the way the Federal government does it, the
Tort Claims Act. If you sue in court--if an employee of the
Federal government commits a tort, the U.S. government comes in
as the defendant. There is no suit against the employee at all.
You could do the same with police officers.
Let me turn quickly in my remaining time to letting the
U.S. sue. Right now, the plaintiff is the victim. Often someone
with one or two felony convictions. Not the most attractive
plaintiff in the suit. You ought to consider letting the United
States sue to remedy the misconduct by a police officer or any
other public official. There is plenty of precedence of that.
The United States can sue. The remedy violation of the voting
rights, public accommodation rights, employment rights. There
is no reason at all not to authorize the United States to come
in and be the proponent of a lawsuit where the allegation is
that the Constitution of the United States was violated.
The 1983 remedy, if strengthened properly, should
accomplish three purposes. It should deter misconduct. It
should compensate the victim and it should through the voice of
the jury condemn the misconduct by creating municipal liability
and letting the U.S. sue, you can diffuse the whole controversy
overqualified immunity. You can eliminate it if you wish. You
can even eliminate the liability of the police officer and the
net results would be a far stronger 1983 remedy of a violation
of constitutional rights.
I look forward to answering your questions at the
appropriate time. Thank you.
[The statement of Mr. Newman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chair Nadler. Thank you, Judge Newman for your testimony
and for your very distinguished service to our country.
Our next Witness is Alexander Reinert. He is the Max Freund
Professor of Litigation and Advocacy and Director of the Center
of Rights and Justice at the Benjamin N. Cardozo School of Law,
Yeshiva University. He teachers and conducts research in the
areas of civil procedure, con law, criminal law, Federal
courts, and the law of prisons and jails.
He argued before the Supreme Court in Ashcroft v. Iqbal and
has appeared on behalf of parties in amicus curiae and many
significant civil rights cases.
Prior to his academic career, he was in private practice of
law focusing on the rights of people confined to prisons and
jails, employment discrimination, and disability rights.
He graduated magna cum laude from the NYU School of Law.
After he graduated from law school, he served as law clerk for
the Honorable Stephen Breyer, Associate Justice of the United
States Supreme Court, and for the Honorable Harry T. Edwards of
the United States Court of Appeals for the District of Columbia
Circuit. He received his A.B. from Brown University.
Professor Reinert, you are recognized for five minutes.
STATEMENT OF ALEXANDER A. REINERT
Mr. Reinert. Thank you so much, Chair Nadler, Subcommittee
Chair Cohen, Vice Chair Ross, Ranking Member Johnson, and
Members of the Subcommittee. My name is Alex Reinert. I am the
Max Freund Professor of Litigation and Advocacy at the Benjamin
N. Cardozo School of Law. This semester I am the Visiting
Professor of Law at Cornell Law School. Thank you for inviting
me to testify today regarding civil rights litigation reform
and qualified immunity. Today I speak in my personal capacity
alone, not for either of the institutions with which I am
currently affiliated.
As a law professor, I have researched, written, and taught
about civil rights litigation and qualified immunity for many
years. Over this time, I have been invited on multiple
occasions to conduct workshops for Federal judges and their law
clerks addressing civil rights litigation. As an attorney, I
have litigated civil rights cases now for more than 20 years,
arguing cases at every level of the Federal judicial system.
My perspective on qualified immunity is informed by all
this experience. My written testimony has already been
submitted. So, with the time allotted to me, I intend to
highlight some of what I cover in that statement, albeit in not
as much detail. I will begin with a broad sketch of qualified
immunity--we have heard some of it already--before we drill
down to some specifics.
So, what is it? It is a defense that government officials
can raise when they are sued for damages for violating the
Constitution. It protects them from liability, unless the law
governing their conduct was clearly established. It applies in
a wide range of contexts to conduct that all would agree is
egregious in cases involving serious injury and even death. It
can even apply, frankly, when the defendant intends to violate
the Constitution.
It's a judicially created immunity that stems from the
Supreme Court's erroneous interpretation of 42 USC 1983. It is
not in the statute or required by statute. To be clear, it is
not required by the Constitution, and it is an anomaly. That is
why, today, qualified immunity is being questioned on multiple
grounds across the political spectrum. Indeed, probably one of
the few things that brings Justice Clarence Thomas and Sonia
Sotomayor together is their hostility to qualified immunity,
albeit for different reasons.
The requirement that there be clearly established law is
the most significant part of the doctrine. As the Supreme Court
has described it, this means that a plaintiff has to show that
prior case law from either the Supreme Court or the Court of
Appeals has to have made the unlawfulness of the officer's
conduct so obvious that only an incompetent officer would not
see it. Many lower courts have interpreted this to mean that a
plaintiff has to show a prior case that found a constitutional
violation for the same right and on nearly identical facts.
I provided a few examples in my written testimony, as have
other Witnesses at this hearing. They are just the tip of the
iceberg. I expect some of the other panelists will discuss
them, so I won't linger on them. What I think it is most
important to take from them is that even if the officer
violates the Constitution, they can obtain protection from
qualified immunity simply because there was no prior case law
finding a violation on exactly the same facts. Like Ranking
Member Johnson, I think we should be a nation of laws.
Qualified immunity interferes with enforcement of the highest
law of the land, the Constitution. In so doing, it undermines
fundamental rule of law principles.
Now, there are many flaws in this doctrine. First, who is
left without a remedy? Americans whose rights have been
violated. Make no mistake, qualified immunity means that the
people who have been killed or seriously injured bear all the
costs of constitutional violations. That is both wrong and
unnecessary.
Of course, qualified immunity also makes it harder for the
law to develop because courts routinely decide cases without
ever addressing whether there is a constitutional violation in
the first place. They just say it hasn't been clearly
established, which means that clearly established law never
develops for future cases.
It also creates long delays in the civil justice system
because of the right of defendants to immediately appeal and
ping-pong a case back and forth between a trial court and
appeals court before there is ever a trial.
Of course, because we count on civil litigation to deter
future constitutional violations, qualified immunity makes it
more likely that officers and police departments will never
learn from their mistakes. It blunts the power of civil
litigation to incentivize systemic reform.
Now, as Federal lawmakers are discussing ending qualified
immunity and State legislators around the country have also
debated legislation like this, you will no doubt hear
objections from some law enforcement groups that this will make
it harder to be an officer because qualified immunity protects
them from individual liability. I want to say this loud and
clear. That is the most pernicious fiction that exists in the
debate around this doctrine.
Law enforcement officers almost never pay judgments in
civil rights cases. Municipalities and States already routinely
indemnify officers, even for egregious misconduct. There is
also insurance available for officers. The substantive
constitutional law already provides ample protection against
second-guessing.
This is a doctrine that poses substantial barriers to
relief. It prevents the enforcement of the highest land of our
law. It leaves the cost of constitutional violations to be
borne by the victims, an inexcusable consequence in a country
that purports to be governed by the rule of law.
Thank you for the opportunity to testify. I welcome your
questions.
[The statement of Mr. Reinert follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
Our next Witness is live and in person, Ms. Tiffany Wright.
She is an adjunct faculty member at Howard School of Law,
supervising attorney of its Human and Civil Rights Clinic. She
was one of the lead attorneys on Taylor v. Riojas, a 2020 case
in which the U.S. Supreme Court without even requiring oral
argument summarily reversed a grant of qualified immunity for
prison guards who subjected an inmate to inhumane conditions.
The Taylor decision is one of only a handful of times when the
Court has reversed a grant of qualified immunity.
Professor Wright received her J.D. magna cum laude from
Georgetown Law Center where she was an editor of the Georgetown
Law Journal and editor-in-chief of its Annual Review of
Criminal Procedure. She served as law clerk to the Honorable
Sonia Sotomayer, Associate Justice to the U.S. Supreme Court,
and the Honorable David Tatel of the U.S. Court of Appeals for
the District of Columbia Circuit, and the Honorable Royce
Lamberth of the U.S. District Court in the District of
Columbia.
Professor Wright, you are recognized for five minutes.
STATEMENT OF TIFFANY R. WRIGHT
Ms. Wright. Good morning, Chair Nadler, Chair Cohen, Vice
Chair Ross, Ranking Member Johnson, and Members of the
Subcommittee. My name is Tiffany Wright. I direct the Civil
Rights Clinic at the Howard University School of Law.
Two years ago, I represented a man named Trent Taylor. Mr.
Taylor was incarcerated in a Texas prison when jail officials
allege that he tried to take his own life. Mr. Taylor was
transferred to a psychiatric prison facility ostensibly to
receive mental health treatment. Instead, Mr. Taylor was
stripped naked and placed in a cell covered in massive amount
of feces. He could not eat for fear of contamination. He could
not drink because even the water faucet was packed with feces.
After four days, the guards moved Mr. Taylor to a second
cell, which in addition to being filthy, it had no furniture
and was very cold. So, Mr. Taylor was forced, due to a clogged
drain in the middle of the floor, as he was still naked, to
sleep in the human waste of other people. This was intentional.
Guards ignored Mr. Taylor's pleas for help, wished him a long
weekend, and said that they hoped he would freeze.
The U.S. Court of Appeals for the Fifth Circuit granted
qualified immunity to the guards. Although every Federal
circuit, including the Fifth Circuit itself, has held that
forced exposure to human waste violates the Constitution, the
Fifth Circuit decided that because Mr. Taylor had only endured
these conditions for just six days the prior precedent did not
qualify as clearly established.
Thankfully, the Supreme Court intervened. The Court held
that this was an especially obvious case, that the
constitutional violation was so clear that no reasonable
officers could have thought otherwise. Taylor is extraordinary
because it is just the third time in history that the Supreme
Court has intervened to reverse a grant of qualified immunity.
It has done the opposite in more than 30 cases. Taylor is not
extraordinary because of its facts. The Supreme Court routinely
refuses to Act in cases with facts just as abhorrent as Taylor.
People like Mr. Taylor are the people that I routinely
represent. In three ways, qualified immunity makes it
impossible for them to get any measure of justice or
accountability.
First, many victims do not have the resources to obtain
legal representation. I have met with many clients who tell of
spending months and years to find a lawyer but are unable to do
so because lawyers cannot risk the time it takes to litigate a
case only to be shut down by qualified immunity.
Second, qualified immunity impedes access to information,
because when the defense is raised in the early stages of a
case, there is no discovery, and so victims can't even ask
questions. I have represented the families of people killed who
can't get basic information like autopsy reports, scene
photographs, or investigative reports.
Finally, qualified immunity upends the normal legal
process. Mr. Taylor suffered the inhumane treatment in 2013. It
would be seven years before the Supreme Court intervened to
deny the qualified immunity defense. For six and a half of
those years, Mr. Taylor alone pro se fought the State of Texas,
who defended the indefensible.
All this means that the harm of qualified immunity falls on
the victims. I have had the unfortunate task of sitting with
victims who have suffered grievous losses and harms to tell
them that there was no justice under the law for them.
On the other side of the equation are police officers, who
are almost always indemnified. When I appear with my clients,
who are families suffering in the worst way, when I appear with
them at settlement negotiations and court hearings, the people
on the other side are not officers who are fearful of losing
their livelihoods. They are insurance adjustors who are worried
about an insurance loss, because even in the rare instances
where qualified immunity fails, the cost is a matter of
insurance loss not a matter of officers' loss of financial
stability.
Thank you for the opportunity to testify. I welcome any
questions.
[The statement of Ms. Wright follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. Wright.
Our next Witness is Rafael Mangual. He is Senior Fellow and
head of research for the Policing and Public Safety Initiative
for the Manhattan Institute for Policy Research. He is also a
contributing editor for City Journal. He has authored and co-
authored a number of Manhattan Institute reports and op-eds on
issues ranging from urban crime and jail violence to broader
matters of criminal and juvenile civil justice reform. In 2020,
he was appointed to serve a four-year term as a member of the
New York State Advisory Committee on the U.S. Commission on
Civil Rights.
He received his J.D. from DePaul University, where he was
President of the Federalist Society and vice President of the
Appellate Moot Court team. He received his B.A. from City
University of New York's Baruch College.
You are recognized for five minutes, sir.
STATEMENT OF RAFAEL A. MANGUAL
Mr. Mangual. Thank you all so much for the honor and
privilege to address this distinguished body on such an
important issue.
I would like to begin by noting that I am not entirely
against the idea of reform when it comes to qualified immunity.
At the end of my remarks, I will offer what I think is a
middle-ground reform proposal that falls between outright
abolition and the status quo.
While reform is worth considering, some skepticism of the
dominant narrative that has influenced both the discourse about
qualified immunity and the proposals to address it is in order.
That narrative is focused on the role that the defense has
played in police litigation, particularly in suits related to
uses of force. It posits that qualified immunity essentially
functions as an unpierceable shield against liability for
police officers, such that officers then internalize a sense of
impunity that in turn leads them to misbehave in ways that they
otherwise wouldn't if they had more financial skin in the game.
As such, the abolition of qualified immunity is often held
up as a way to significantly reduce excessive uses of force and
other types of police misconduct. While this narrative has
succeeded in influencing both public opinion and various reform
efforts, it is wrong for three reasons.
First, this narrative assumes without evidence that
officers regularly and accurately assess their likelihood of
successfully mounting a qualified immunity defense in light of
the binding precedents in their respective jurisdictions when
deciding whether, and if so how, to use force. A sizeable body
of research has shown that in the context of situations
involving the use of force, police officers overwhelmingly tend
toward an intuitive decision-making process. The main reason
for this tendency is that the encounters in which these
decisions are generally made tend to be rapidly unfolding and
volatile situations that simply don't lend themselves to the
type of analysis that would go into an officer assessing his or
her risk of personal liability based on the type and level of
force used.
The second reason that the standard story about qualified
immunity doesn't hold water is that the available data seem to
undermine the claim that the defense accounts for a significant
share of police litigation outcomes. For example, the Legal Aid
Society maintains a database of lawsuits filed against the New
York City Police Department between January 2015 and June 2018.
Now, if you filter those 2,400 cases by disposition, it
produces just 74 cases result in favor of the police
defendants. Even if all 74 were disposed of on qualified
immunity grounds, we are still only talking about 3 percent of
the cases in the database.
I would also like to point the Subcommittee to an empirical
assessment of qualified immunity published in a 2017 issue of
the Yale Law Journal by UCLA law professor and noted qualified
immunity abolitionist Joanna Schwartz, which found that less
than four percent of the more than 1,100 cases analysed
resulted in whole or partial grants of dismissal or summary
judgment on qualified immunity grounds.
As Professor Schwartz noted in the Wall Street Journal in
response to this very argument less than two years,
unsuccessful cases against police tend to fail because of other
procedural and substantive infirmities, not qualified immunity.
In that very same letter to the editor, Professor Schwartz went
on to note that abolishing qualified immunity won't flood the
courts with frivolous suits, which undermines any suggestion
that the explanation for why qualified immunity does not
account for a particularly large share of police litigation
outcomes owes to some large number of cases that did not get
filed in anticipation of being disposed upon immunity grounds.
The third major flaw in the dominant narrative about
qualified immunity is that abolishing the defense, as has been
noted already, won't actually result in police officers having
more financial skin in the game because it is not actually the
true source of financial protection for officers. That is
because when individual officers are successfully sued, which
is relatively often, their employers indemnify them against
liability, that is, they pick up the tab. A 2014 study found
that governments already pay approximately 99.98 percent of the
dollars that plaintiffs recovered in lawsuits alleging civil
rights violations by law enforcement.
Now, while the idea that qualified immunity reform will
significantly reduce police uses of force is misguided, it is
still worth considering ways to limit the number of cases in
which constitutional harms go without redress. In 2001, in a
case called Saucier v. Katz, the Supreme Court stated that
qualified immunity analyses should first assess whether a right
was violated before assessing whether the right was clearly
established. Unfortunately, however, the Supreme Court reversed
itself eight years later in Pearson v. Callahan, which gave
judges the discretion to skip step one of this analysis.
So, the short version of my middle-ground proposal is to
consider legislatively reestablishing the Saucier sequence,
because requiring courts to confront the constitutional or
statutory questions before them in 1983 cases would both
promote the development of the law in the civil rights arena,
and it would more quickly shrink the scope of not yet
established rights.
Preventing courts from leaving these questions unanswered
may not eliminate the potential for grants of immunity based on
dubious factual distinctions from prior cases, but it will
prevent situations in which multiple officers in the same
jurisdictions get to avail themselves of qualified immunity in
cases involving the same conduct over a period of time simply
because courts have continually punted the same question.
Another reason I think it is worth reconsidering the
Saucier sequence is that it is often assumed that grants of
immunity based on the clearly established prong of the analysis
actually involve actual violations of constitutional or Federal
civil rights. This is not obviously the case. Making it clear
to the public that liability is denied because the conduct
wasn't actually unconstitutional is an important end to pursue.
I hope this statement contributes to a better understanding
of the realities of this important debate. I look forward to
addressing any questions raised by these points as best I can.
Thank you.
[The statement of Mr. Mangual follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Our next Witness is Jay Schweikert, senior research fellow
for the Project on Criminal Justice at the Cato Institute. His
research and advocacy focus on accountability for prosecutors
and law enforcement, including a specific focus on the doctrine
of qualified immunity in most recent years. Before joining
Cato, he spent four years doing civil and criminal litigation
at Williams & Connolly.
He earned his J.D. from Harvard Law School, where he was an
articles editor for the Harvard Law Review and chaired the
Harvard Federalist Society student colloquium program.
Following law school, he clerked for the Honorable Diane Sykes
of the U.S. Court of Appeals for the Seventh Circuit and
Honorable Laurence Silberman, U.S. Court of Appeals for the
District of Columbia. He holds a B.A. in political science and
economics from Yale University. Having graduated from two Ivy
schools, some would say he is not qualified for the Supreme
Court. I would submit he is.
You are now recognized for five minutes.
STATEMENT OF JAY SCHWEIKERT
Mr. Schweikert. Thank you. Chair Cohen, Ranking Member
Johnson, and Members of the Subcommittee, thank you for
convening this hearing and giving me the opportunity to express
my views on this crucial subject.
For the last four years, I have been leading Cato's
strategic campaign to challenge the doctrine of qualified
immunity, which we see as the biggest impediment to meaningful
accountability in the criminal justice system.
Unfortunately, the national debate around qualified
immunity has given rise to several persistent misconceptions
about what the doctrine actually is and what eliminating or
reforming it would actually entail. In my comments today, I
would like to focus on three of those, in particular:
(1) The misconception that qualified immunity protects good
faith mistakes of judgment by the police,
(2) the misconception that qualified immunity protects against
frivolous lawsuits, and,
(3) the misconception that reforming qualified immunity would
damage the integrity or morale of the law enforcement
community.
First, qualified immunity is not a good faith defense, and
it is not necessary to protect the discretion of police
officers to make difficult, on-the-spot decisions in the field.
In other words, it does not protect honest mistakes. The
doctrine of qualified immunity only matters when a public
official has, in fact, violated someone's Federally protected
rights. That means if a police officer has not committed any
constitutional violation, then by definition they don't need
qualified immunity to protect themselves because they haven't
broken the law in the first place.
The Supreme Court has made crystal clear that when police
officers make good faith mistakes of judgment, such as
arresting someone who turns out to be innocent or using force
that turns out with the benefit of hindsight to have been
unnecessary, they have not violated the Fourth Amendment at all
so long as they acted reasonably. In other words, deference to
reasonable, on-the-spot decisions by police officers is already
baked into our substantive Fourth Amendment jurisprudence. The
Fourth Amendment is what protects good faith decisions by
police, not qualified immunity.
The cases where qualified immunity ends up mattering aren't
those where officers made reasonable mistakes of judgment. They
are the cases where officers acted in bad faith but where a
court simply had yet to address that exact scenario. We could
do nothing but list examples of this all day, but I will just
give two to flesh out what this means in practice.
In a case called Jessop v. City of Fresno, the Ninth
Circuit granted immunity to officers alleged to have stolen
over $200,000 in cash and rare coins while executing a search
warrant. In other words, they were alleged to have abused their
authority for their own personal enrichment. Now, obviously,
these officers were not acting in good faith, and no one
contended that they were. They still received qualified
immunity for the sole reason that the Ninth Circuit had yet to
address that exact scenario.
Similarly, in a case called Frasier v. Evans, the 10th
Circuit granted immunity to officers who knowingly violated a
man's First Amendment rights by harassing, threatening to
arrest, and illegally searching him all because he recorded
them in public. Now, these officers had been explicitly trained
by their department that citizens do have a First Amendment
right to record the police in public. So, far from acting in
good faith, they had actual knowledge they were violating his
rights. They received qualified immunity because the 10th
Circuit, unlike six other circuits, had yet to address that
exact question.
Second, qualified immunity does not protect against
frivolous civil rights claims. Again, the doctrine only matters
where,
(1) a public official has violated someone's rights, but,
(2) a court holds that those rights were not clearly
established at the time of the violation.
So, by definition, it only makes a difference where the
underlying case is meritorious. If a civil rights suit is
actually frivolous, in other words if it lacks legal or factual
merit, then other tools of civil procedure are perfectly
capable of dismissing those claims.
This is, indeed, borne out by Professor Joanna Schwartz's
2017 article, ``How Qualified Immunity Fails,'' where she found
that only a minuscule fraction of section 1983 cases, 0.6
percent, were dismissed prior to discovery on the basis of
qualified immunity. In other words, notwithstanding qualified
immunity's purported value in sparing defendants from having to
litigate nonmeritorious cases, the doctrine almost never
achieves this intended goal.
Third, reforming qualified immunity would not hurt
retention or morale in the law enforcement community. In fact,
the exact opposite is true. Qualified immunity itself hurts the
law enforcement community by depriving officers of the public
trust and confidence that is necessary for them to do their
jobs safely and effectively.
Policing is dangerous, difficult work. Public perception of
accountability is absolutely essential to police effectiveness.
Yet, in the aftermath of many high-profile police killings,
most obviously the murder of George Floyd, Gallup reported that
trust in police officers had reached record lows and that for
the first time ever less than half of Americans placed
confidence in their police force. This drop in confidence was
driven in large part by the perception that officers who commit
misconduct are rarely held accountable. So, qualified immunity
exacerbates what is already a crisis of confidence in law
enforcement. Even if only a small proportion of officers
routinely violate the law, if those officers are not held
accountable, the community as a whole suffers a reputational
loss.
Thank you and I welcome your questions.
[The statement of Mr. Schweikert follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
Mr. Arthur Ago is Director of Criminal Justice Project at
the Lawyers' Committee for Civil Rights Under Law. Before
joining the Lawyers' Committee in November of 2019, he spent
close to two decades at the Public Defender Service for the
District of Columbia representing indigent children and adults
facing serious delinquency and felony criminal charges in DC,
ultimately serving as its Trial Chief. He has also been an
Adjunct Professor at the Georgetown University Law Center,
American University Washington College of Law, and the
University of District of Columbia David A. Clarke School of
Law.
He received his J.D. from George Washington University Law
School, his M.A. from the Asian American Studies, in Asian
American Studies, excuse me, from the University of California
at UCLA, and his B.A. from Amherst.
You are recognized for five minutes.
STATEMENT OF ARTHUR AGO
Mr. Ago. Thank you, sir. Good morning, Chair Cohen, Vice
Chair Ross, Ranking Member Johnson, and Members of this
Subcommittee. My name is Arthur Ago, and I am the Director of
the Criminal Justice Project at the Lawyers' Committee for
Civil Rights Under Law. Thank you for the opportunity to
testify today about qualified immunity and how it both
undermines civil rights and is a barrier to police
accountability.
The Lawyers' Committee has been a leader in the battle for
equal rights since it was created in 1963 at the request of
President Kennedy to enlist the private legal bar's leadership
and resources in combating racial discrimination. Our Criminal
Justice Project works to protect equal justice under the law by
confronting the ways in which racism infects every stage of our
criminal justice system, including advocating for and working
toward increased police accountability.
Approximately two years ago in the wake of the killings of
George Floyd, Breonna Taylor, and far too many other people of
color, tens of millions of Americans took to the streets to
protest enduring police abuse and violence, particularly
against communities of color, and to demand a fundamental
transformation of policing. We commend the U.S. House of
Representatives for twice passing the George Floyd Justice in
Policing Act in response. Because the Justice in Policing Act
has yet to be enacted, the country has not seen those
transformative changes. Nevertheless, Congress has the
opportunity today to take a critical step in achieving this
necessary transformation by abolishing the doctrine of
qualified immunity.
In the simplest of terms, qualified immunity undermines
civil rights in the United States. In the years following
emancipation and the radification of the 13th, 14th, and 15th
Amendments, Congress enacted the Civil Rights Act of 1871,
which includes the well-known section 1983. The Act was the
direct result of a congressional desire to secure to all
citizens, including formerly enslaved people, the rights
guaranteed to them by the Constitution. What the Act
emphatically did not contain and what the Constitution
emphatically does not contain and what this Congress has never
legislated is a way to immunize those who violate others' civil
rights under color of law.
It was the Supreme Court of the United States, and not
Congress, a century after 1871 that created the defense of
qualified immunity. It is a defense that enables police
officers to have an otherwise meritorious civil rights case
dismissed even when no one disputes those officers' conduct. As
you have heard from my fellow Witnesses, it is a defense that
is fundamentally flawed because it creates too high a burden on
victims of police abuse and misconduct, preventing these
victims from having their day in court.
I am certain that we will discuss the specific ways that
the judge-made qualified immunity defense is flawed during the
course of the hearing today. I would like to take a moment to
emphasize the tragic effect that qualified immunity has had on
people of color and in particular, Black people.
Black Americans are three times more likely than White
Americans to be killed by the police, and Latinos nearly twice
as frequently as White people. Although Black people make up
only about 13 percent of the U.S. population, Black Americans
account for 26 percent of those killed by the police and about
37 percent of those killed while unarmed. In all use-of-force
cases, depending on how you define the different types of
force, including those not resulting in death, Black people and
Latinos experience police use of force 50 percent more often
than White people and up to 3\1/2\ times more often depending
on the type of force.
Despite these devastating numbers, Americans, and
especially people of color, are unable to hold police
accountable through other avenues. Police do not effectively
police themselves, nor can Americans rely on the criminal
justice system for accountability. From 2005-2020, police
across the country have fatally shot approximately 15,000
people. Of those, 110 were charged and only 40 convicted.
What remains for victims of police misconduct is
accountability in civil court through civil lawsuits against
police officers who commit misconduct. This is precisely what
Congress envisioned in 1871. The Supreme Court has severely
restricted this avenue of police accountability since it
established qualified immunity.
It is now time for Congress to Act and for this body to
return the Civil Rights Act of 1871 to its original intent,
which is to allow redress for people whose constitutional
rights were violated by those, including law enforcement,
acting under color of law, violations that continue to be
endured disproportionately by Black people and other people of
color. I urge you to seize this opportunity.
Thank you for asking me to appear before you today to share
the views of the Lawyers' Committee for Civil Rights Under Law.
I look forward to your questions.
[The statement of Mr. Ago follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you for appearing before us. Thank you for
your testimony.
Our final Witness is Captain Frederick Thomas. Captain
Thomas is President of the National--excuse me? Oh, I skipped
Mr. Johnson. Well, no, I didn't skip Mr. Johnson. Our next to
final Witness is Captain Frederick Thomas. Captain Thomas is
President of the National Organization of Black Law Enforcement
Executives, an organization of professional CEOs and officers
in the field of law enforcement. He assumed NOBLE's presidency,
NOBLE being the National Organization of Black Law Enforcement
Executives, in August 2021 and has been in the organization for
11 years. He is also a captain of the East Baton Rouge Parish
Sheriff's Office and has over 30 years of experience as a law
enforcement officer. He is also a military combat veteran.
Captain Thomas received his bachelor's degree in criminal
justice from Grambling State University in 1989 when Eddie
Robinson was still there, I think. Later, in 2013, he earned a
Master of Science degree in law enforcement and corrections
from Southern University A&M. He is the recipient of numerous
commendations and awards.
Captain Thomas, you are recognized for five minutes as our
penultimate Witness.
STATEMENT OF CAPTAIN FREDERICK THOMAS
Captain Thomas. Thank you. Good morning, Chair Jerrold
Nadler; Ranking Member Congressman Jim Jordan; Subcommittee
Chair Congressman Steve Cohen; Ranking Member Congressman Mike
Johnson; and Committee Members. Thank you for the opportunity
to provide a testimony regarding qualified immunity on the
behalf of the National Organization of Black Law Enforcement
Executives, otherwise known as NOBLE.
My name is Frederick L. Thomas. I am also a captain with
the East Baton Rouge Parish Sheriff's Office, which is located
in Baton Rouge, Louisiana.
I have been in law enforcement profession 30 years, and 26
years in the Louisiana Army National Guard, from which I
retired. I am a U.S. military combat veteran who served in
support of Operation Iraqi Freedom.
NOBLE members serve at every level of command, in Federal,
State, and local law enforcement agencies. Fifty chapters
across the nation. We represent thousands of individuals,
including criminal justice practitioners. Our members are as
diverse as the nation we protect and serve. Their views vary
just as much.
However, we all agree that qualified immunity needs to be
revisited. NOBLE is honored to testify in hopes of addressing
the unintended consequences and many misconceptions that keep
us from police reform.
The clearly established standards in the current documents
set a high bar that favors law enforcement. Getting rid of
qualified immunity altogether threatens public safety. Instead,
NOBLE proposes strengthening trust and legitimacy between
communities and law enforcement and making police more humane
and effective.
In my experience, the unresolved issues around police
violence and the failure to create safeguards that addressed
the present imbalance have had consequences on law enforcement
agencies across the country.
Recruitment and retention are at an all-time low. State and
local government budgets are strained to their insurance
limits. Officer performance and morale have been negatively
impacted.
NOBLE believes in doing the right thing for the public. We
call for our professions to come together to provide reasonable
recommendations to our legislators. The problem is
misinformation. Our saving grace is unity.
As public servants, we must share our expertise with
transparency so you can make a real Federal policy change.
NOBLE joins law enforcement organization nationwide to propose
a system of claims of qualified immunity based on whether an
officer conduct was objective and reasonable, or if there was a
fair notice that the conduct violates a constitutional right.
Fair notice allows plaintiffs to point to the related case
laws to prove the conduct in question is unconstitutional. The
objectively reasonable standard accounts for the situations
where there are no previous case laws related to the conduct in
question.
These recommendations ease the burden of plaintiffs while
ensuring law enforcement officers are still appropriately
protected. They increase transparency and better ensure those
who engage in gross misconduct are held accountable.
NOBLE knows firsthand the history of civil rights in this
country. We know it from the legislative experience, we know it
from our law enforcement experiences, and most important, we
know it from personal experience.
This intimate knowledge lets us understand this is not a
black-and-white issue. Real reform requires us to explore best
practices, such as improving officer training and de-escalating
tactics, crisis intervention, and deploying effective
alternates to legal force.
Embracing procedure with justice. Instituting more
selective recruiting methods and standards. Re-imagining public
safety without depending so much on the police.
We lend our expertise as public servants to creating a
nation that united balance and assure justice for all. We dare
to re-imagine police based on dialog, examining--examination
and allocation of resources. We believe that oversight will
help us build trust and transparency in our neighborhoods,
especially communities of color.
This is a noble profession. Most police officers do their
job every day with respect and commitment to the values and
life of our democracy. NOBLE was founded in 1976 during a
three-day symposium to discuss high crime rates in the Black
urban communities. Today, this organization represents over
3,400 members who serve all communities and all Americans.
In closing, NOBLE supports comprehensive legislation that
improves law enforcement in all ways, at all levels. Police
reform and qualified immunity are complex issues. We encourage
all interested parties and law enforcement and Congress to come
together to address them.
I thank you, Chair Nadler, and the Committee Members for
supporting our profession and listening to the voice of NOBLE
members, and for the invitation to appear today. Thank you.
[The statement of Mr. Thomas follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. You're welcome, sir. You know my Chief Davis, I
presume.
Captain Thomas. Sir?
Mr. Cohen. Chief Davis in Memphis?
Captain Thomas. Yes.
Mr. Cohen. She's a--we hope she's a star. She appears to be
a star.
Captain Thomas. Okay.
Mr. Cohen. Thank you, sir.
Now, our final Witness we've all been waiting for, Mr.
William Johnson. He's the Executive Director and General
Counsel of the National Association of Police Organizations, a
coalition of police unions and associations from across the
United States.
He represents more than 241,000 law enforcement officers,
and a thousand police units and associations. In his role as
Executive Director, Mr. Johnson is responsible for NAPO's day-
to-day operations, testifies before Congress, provides advocacy
before various governmental bodies.
He received his J.D. from Georgetown University's Law
Center and an undergraduate degree from Brown University. He
holds a post-graduate certificate in the nonprofit leadership
and management from Michigan State University, Mr. Izzo's team.
Mr. Johnson, you're recognized for five minutes.
STATEMENT OF WILLIAM J. JOHNSON
Mr. Johnson. Thank you very much, Chair Mr. Cohen, Chair
Mr. Nadler, Vice Chair Ms. Ross, and Ranking Member Johnson,
and the distinguished Members of this Subcommittee.
Thank you for the opportunity to speak today on behalf of
the rank-and-file officers on this critical issue of qualified
immunity.
First, it is vitally important from our view to emphasize
what qualified immunity is and what it is not. Qualified
immunity, when it applies at all, is limited in scope to a
small subset of civil lawsuits.
To determine whether qualified immunity applies in any
given situation, a court must ask whether it would have been
known to a reasonable officer that the alleged conduct was
unlawful in the situation she confronted at the time of the
incident itself.
If a reasonable officer could not have known that the
conduct was unlawful, then she is immune from further civil
liability, but only as to that particular allegation.
Qualified immunity is therefore an issue of fundamental
fairness. It only has effect when plaintiffs' attorneys allege
liability on the part of an officer based upon the violation of
a right that, in fact, was not known or defined at the time of
the incidents.
Qualified immunity also simply does not apply at all
outside this small subset of particular civil cases. It has
nothing to do with cases such as the prosecution of Minnesota
officers in the George Floyd case, nor any other prosecutions
of officers.
The officers involved in the death of Mr. Floyd were
arrested, charged, and convicted. They are already incarcerated
or pending sentencing. The same holds true in the prosecutions
of police officers for the Daunte Wright, Botham Jean, Walter
Scott, Rodney King, and Breonna Taylor cases. The doctrine does
not and cannot affect such cases at all.
Second, the doctrine of qualified immunity itself is one
repeatedly recognized by our Supreme Court as part of its
constitutional juris prudence. It was not invented by police
unions, police associations, or police departments.
The same independent judiciary that the Constitution
requires to supervise officers in matters such as warrant
issuance and execution, evidence collection, Miranda warnings,
and the affording of due process rights to suspects has also
recognized that a functioning society requires that reasonable
officers be provided this qualified immunity in applicable
civil cases.
Without it, the orderly Administration of justice would
come to a halt amidst the paralyzing fear of personal liability
for unknowingly violating an unknown and unknowable right.
Qualified immunity, thus, does not make officers immune to
State or Federal criminal charges for a wrongful act, and it
does not protect officers from internal investigations or
disciplinary actions including termination.
Another area that it falls to NAPO to emphasize as the only
rank-and-file entity present today is the vital importance of
qualified immunity to individual front-line officers. It is
these men and women who perform the most difficult and
dangerous roles in our society.
The policymakers and administrators who define and assign
the tasks that our members are to perform are generally not
themselves at risk of personal liability for their decisions.
Line officers, as a rule, do not have the financial resources
or the institutional personnel at their disposal to defend
themselves from unfounded allegations that agencies,
municipalities, and high-ranking officials do.
The line officer, like other working persons of modest
means, must thus place her confidence in the court system and
integrity of justice--integrity of judges to correctly apply
this constitutional standard.
Related to this point, we note that there have not been
similar calls for reform or abrogation of qualified immunity
for firefighters, EMTs, code enforcement officers, construction
inspectors, or other public actors, all whom, also, have duties
that directly impact the health, safety, and very lives of
citizens.
The next-to-last point I wish to raise concerns the
consequences of doing away with qualified immunity. Well-
qualified officers, by definition, are able to choose another
less hazardous, either physically, psychologically, or
financially, line of work. The public, however, needs and
relies upon experienced officers.
Police work, like many other professions, is not learned
over night, particularly in specific areas of law enforcement
such as sexual assault, homicide, crimes against children, and
anti-terror. Years and years of training and experience are
required before an officer becomes really good at their job.
If one of us or a family member was a victim or such a
crime, we would want officers and detectives with decades of
experience handling that case. Doing away with qualified
immunity cuts directly against this public policy good.
Legitimate, proactive policing would be discouraged and
chilled.
In summary, a knowing violation of a right already entails
significant administrative, economic, and even criminal
liability for officers and the agencies that employ them.
Qualified immunity reform is, in our view, largely a solution
in search of a problem.
Since this type of reform would only serve to impose
liability in cases where no reasonably officer could have known
that a right was being violated, it cannot, by definition,
improve policing, nor deter misconduct.
The public policy tendency of such reform is to create an
incentive for officers to do nothing since they cannot, by
definition, know if they might be personally liable in any
given situation in which they do act. That is a result that no
citizen, and certainly no Member of this House, as a lawmaker,
should conscience.
Thank you very much, and I'd be happy to answer any
questions.
[The statement of Mr. Johnson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Johnson.
That completes our Witnesses and we appreciate each. We now
proceed under the five-minute Rule of questions where--and I
will begin by recognizing myself for five minutes.
Mr. Cohen. Judge Newman, why do you propose making
municipalities liable for the acts of their employees in
constitutional tort cases as part of a solution to the problems
as you see posed qualified immunity doctrine?
We need--we can't hear you. You're on mute. Start my time
over, start my time over.
Judge Newman. Can you hear me now?
Mr. Cohen. Yeah, we hear you now. Marcel, Marcel Marceau.
Judge Newman. I propose it for two reasons. First, I think
it's the right thing to do. I don't see why employers should be
liable for every tort except a constitutional tort. My second
reason, quite relevant to this hearing, is--let me begin by
answering it this way.
As your Witnesses have indicated, qualified immunity is a
highly controversial topic. You know that, and that's why
you're having your hearing. If you create municipal liability,
you substantially defuse the problem of qualified immunity and
increase the chance of both having an effective remedy for the
violation of constitutional rights, and indeed, increase the
chances of passing a bill.
With qualified immunity so controversial, I think the
chances of modifying it are very low. You would know that
better than I do. I urge you, employer liability coupled with
suit by the United States, both to defuse the controversy, if
you did that, you don't even need qualified immunity.
Indeed, as I pointed out, you don't even need police
officer liability, which ought to find common ground among the
police. Because the plaintiff would sue the United States--
would sue the city. The United States could bring the action.
So, any plaintiff would say why should I bother suing the
police officer, I might as well sue the city. So, it would
strengthen the remedy, it would defuse the problem, it would
enhance the chances of getting anything done in this highly
controversial area.
Mr. Cohen. Thank you, Judge. So, in essence, if we did
this, Mr. Johnson's clients should be happy, Captain Thomas and
his folks should be happy. Everybody would be happy. Is that
right?
Judge Newman. I really think, in all modesty, there's a
good chance that would occur.
Mr. Cohen. Thank you, sir.
Mr. Ago, you confused me entirely. You said that this
doctrine was created by the courts. Yet, most of my colleagues
that support this doctrine without change support judges who
are strict constructionist. How how do you reconcile that? I
can't do it, it's really a quandary for me.
Mr. Ago. Thank you, Congressman Cohen, for your question.
Without trying to avoid the question, I don't want to get
between you and your colleagues.
Mr. Cohen. Come on.
Mr. Ago. I would say--
Mr. Cohen. I'm talking about my colleagues in the Senate.
Mr. Ago. I will say that it is a mystery as to why and how
it has happened that in essence, what happened was in 1967, and
then refined really in 1983--I'm sorry, 1982, the Supreme Court
of the United States in essence injected itself into the
legislative process by writing into the Civil Rights Act of
1871 this defense of qualified immunity.
It's nothing that appears in the Civil Rights Act and it's
nothing that appears in the Constitution. Now is the
opportunity for this Congress to effectively say that the
Supreme Court should not have done that, especially when there
are Members of the Supreme Court on both sides of the political
spectrum that are troubled by qualified immunity.
Mr. Cohen. Thank you, sir.
Professor Reinert, can you please help us with how the
relevant legal history, which we discussed there, does not
justify importing the defense of qualified immunity into 1983.
What's your thought about that?
Mr. Reinert. Sure. Just elaborate a little bit. What the
Supreme Court did that was so wrong was it said in the 1967
case, that it would assume that the common law immunities that
applied in 1871 would be imported into the Civil Rights Act.
Now, that was wrong for two reasons.
(1) Was there was no common law immunity that looks anything
like the qualified immunity of today. That's error number one.
(2) The reconstruction Congress in 1871 said when it enacted
the statute, that's the precursor to section 1983, says we
don't want State law interfering with this right. They said it
in explicit language.
So, there's two reasons that the Supreme Court went off on
the wrong road to announcing this judge-made doctrine of
qualified immunity, which is not constitutionally required.
Contrary to my friend, Mr. Johnson, it has nothing to do with
the Constitution. It is simply an interpretation of a statute,
which is erroneous.
Mr. Cohen. Thank you, sir. Let me ask you a question. Do
you know my friend Agatha Cole?
Mr. Reinert. Yes, I do.
Mr. Cohen. Well, she's made herself distinguished. She
wrote the amicus brief in West Virginia v. EPA, and I was very
proud of her for doing that. She invited me to your law school,
and I appeared there before your student body one time. She's a
star.
Mr. Reinert. Yeah, she was a wonderful student of mine, so.
Mr. Cohen. She owes it all to you, then. Thank you, sir.
I want to ask unanimous consent that we enter into the
record the statement from the Constitutional Accountability
Center and the statement from the Major Cities Chiefs
Association. Without objection, it will be done.
[The information follows:]
MR. COHEN FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
I now recognize Mr. Johnson for five minutes.
Mr. Johnson of Louisiana. Thank you, Mr. Chair.
Ask unanimous consent to enter into the record today this
statement by Sheriff Greg Champagne. He's the former President,
current Second Vice President and Chair of Legal Affairs
Committee of the National Sheriffs Association. Without
objection, I hope.
Mr. Cohen. Without objection, you hope rightly.
[The information follows:]
MR. JOHNSON OF LOUISIANA FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Louisiana. Thank you, thank you.
I stated earlier--my questions are going to be for Mr.
Johnson. Just by review for everyone listening, he's the
Executive Director and General Counsel of the National
Association of Police Organizations. Grateful he can be with us
by Zoom.
There are a number of Democrat politicians I mentioned
earlier who have spent the last several years, and this is just
a fact, and facts are stubborn things, as John Adams said,
trying to take funding and resources away from police
departments. I mean, that's just what happened.
It seems insane to us. I think people are recognizing how
crazy the idea is. They've argued, ironically, that somehow
this will make communities safer.
We don't have to look far to find individuals who have
advocated for those things. In fact, we've got several on this
very Committee. I mean, with respect, Committee Chair Nadler
was asked a while back whether the New York Police Department
budget should be cut, and he said, ``Yes, it certainly should
be cut.''
Mr. Johnson of Georgia serves on our Judiciary Committee.
He was asked whether he supports defunding the police. He said,
``We certainly can repurpose some of the funding.''
Of course, Ms. Bush, who serves on this Committee, spent
approximately $200,000 in her campaign funds on private
security detail last year, by the way. She's a leader, of
course, of the Defund the Police movement.
Every single one, every single one of my Democrat
colleagues on this Subcommittee have voted to end qualified
immunity. So, these aren't political talking points, these are
the facts. We have a disagreement on this very important issue.
Mr. Johnson, question, how does it--what is your response
when you hear of politicians who voice support for defunding
the police when you serve law enforcement members across the
country who put their lives on the line every day to protect
their communities?
Mr. Johnson. Thank you, Ranking Member. As a political
question, I think that mantra is dying away. There certainly
are some Members--some political officials who continue to tout
that and some who say that, in fact the Democratic Party, or
whatever party it is, hasn't gone far enough in a progressive
direction.
I think that's incorrect. I think that the Members of
Congress and other elected officials who have been around
longer realize that message as a political message and didn't
sell well in 2020. It certainly didn't sell well in 2021 in the
elections in Virginia, New Jersey, and so forth.
Leaving aside the politics of it, just in terms of, I
guess, the reality of men and women on the ground, whether
you're a police officer or not, I think public safety is the
primary value without which nothing else in a community can
happen. Good schools, small business, people relocating to your
community. None of that happens unless people feel safe in the
community.
It doesn't--you don't have to be a rocket scientist to
understand that people want police officers in their
communities. They want ethical, honest, and diligent police
officers. They want police officers. They want public safety.
Mr. Johnson of Louisiana. They need it. Even though those
were--it was political talking points and a political proposal
and thing they were trying to advance, it had real-world
consequences. So, the recruitment and the retention of police
clearly has been affected by this Defund the Police movement.
Also, we would imagine the eradication of qualified
immunity. I've talked to law enforcement officers and sheriffs
and police chiefs in my district, and they are deeply concerned
that if qualified immunity were somehow to go away or be
diminished, they would not be able to recruit and retain
officers. Is that a real concern?
Mr. Johnson. It is and it's already happening. Qualified
immunity is one facet of a public campaign in some ways to
demonize the police or to blame the police for a lot of
problems that they didn't create but that somehow, we find
ourselves responsible. At two o'clock in the morning when you
call, we're the people that show up here.
Who say that there aren't people who shouldn't be police
officers for whatever given reason. When they're found out,
they should be terminated, they should be prosecuted. All that
has to happen.
In terms of policing itself, clearly, the continual mantra
among not all, but some elected officials, among the media,
that the police are somehow to blame for society's ills, it's
inaccurate.
Police just like any other group, whether it's accountants,
pharmacists, mechanics, or air conditioning repair people, if
constantly all you're hearing and your family is hearing is
that you're part of the problem, that you're brutal, racist,
and ignorant, you can't be helped, you need to be reformed,
this is just how they are.
Certainly, it's detrimental to the morale and the
effectiveness of any profession, and police are no exception to
that.
Mr. Johnson of Louisiana. Thank you for articulating that.
I'm out of time, but I want to say, as you noted, this is not
rocket science. We need to apply common sense here.
I yield back.
Mr. Cohen. Thank you. I just want to comment. It's like
Ukraine has brought Democrats, most Democrats and Republicans
together. Qualified immunity has--and the Democrats have called
a Cato Institute person as our Witness, and the Republicans
called a union official as theirs.
Mr. Nadler, you're recognized.
Chair Nadler. Thank you, Mr. Chair.
Let me start by setting the record straight. Mr. Johnson
said that I suggested decreasing the funding of the New York
City Police Department. It is true. There was a movement at
that time to shift some of the functions of the Police
Department to another city department. I agreed with that.
As the function went from one department to the other, so
should the funding associated with that function. The total
funding was not suggested to be decreased.
Mr. Schweikert, do you agree that qualified immunity has
failed as a matter of law doctrine and public policy, and if
so, why?
Mr. Schweikert. I do agree with that. I think it's failed
as a matter of law for reasons that Professor Reinert has
already ably explained. It was simply an invention of the
Supreme Court.
While there is some dispute about whether the early Supreme
Court cases employing an actual good faith understanding of
qualified immunity had some support in common law, there is no
dispute at all among any scholars today that the current
clearly established law standard is absolutely unsupported by
either the text of section 1983 or the history on which it was
passed.
It's failed as a practical and moral matter because it has
denied justice to victims whose rights have been violated, and
it has undermined the efficacy of the law enforcement community
by exacerbating the public's unfortunately accurate perception
that police officers who routinely commit misconduct are not
held accountable.
Chair Nadler. Thank you. Professor Wright, first,
congratulations on your victory in the Supreme Court litigating
Taylor v. Riojas. It's an incredible accomplishment, and we
commend you for your work litigating on behalf of Mr. Taylor.
It seems the Supreme Court almost always decides its
qualified immunity cases through the shadow docket. Can you
describe why this practice is problematic?
Ms. Wright. Thank you for your question, Chair.
The practice of deciding cases on the shadow docket is
problematic for a number of reasons.
(1) It puts the processes of the Supreme Court behind a
curtain that shields it from public view. So, when a case is
decided on the shadow docket, there is no public argument.
There are not even briefs on the merits. So, it prevents the
public from understanding what's happening and it allows the
Supreme Court to make law, and even some policy decisions that
govern parts of the United States, without any transparency
into the process. So, that's problem number one.
(2) When you decide these cases specifically on the shadow
docket, qualified immunity cases. These are often cases where
the facts are in some dispute. When you do it on the cert stage
briefs alone, there is no opportunity for the parties to air
that disagreement or to put the actual questions and the actual
facts before the court.
So, it impedes lawmaking and impedes public trust in the
judiciary process.
Chair Nadler. Thank you. Captain Thomas, how does qualified
immunity exacerbate our accountability crisis among law
enforcement?
Captain Thomas. Accountability piece, that's what we're
trying to do now. We must make people believe that the police
are here to do the right thing at all times. The qualified
immunity piece, we have officers now, this came up in
Louisiana, they're actually buying umbrella policies just to
protect their families.
So, taking this qualified immunity out of this talk would
just--we'd be in a situation that we can't control. We couldn't
control it.
So, we all need to just get together. That's why we're here
with Congress. That's why I'm glad we have our colleagues here
so we can discuss these things. Because we need more talking on
them points.
Chair Nadler. Thank you. Judge Newman, can you explain how
qualified immunity undermines official accountability and
precludes individuals from effectively vindicating their
constitutional rights?
Judge Newman. Well, I don't want to see the matter
overstated. I think it does that in some cases, and in some
cases not.
I've heard the statistics today that very few cases are
dismissed on qualified immunity. In the 30 cases I've presided
over at trials in the District Court, most of them resulted
them in a jury finding in favor of the police officer.
I think qualified immunity was simply a--they didn't
understand it. We did a poll later of all the jurors who heard
these cases. It was clear they didn't understand the doctrine
at all. My sense was they were simply finding for the police
officer because they didn't want him to have to pay, and they
were unaware that the city was going to pay.
So, it undermined it in the sense that it tilted the scales
in favor of a verdict for the police officer in a case.
Chair Nadler. Thank you. Professor Reinert. Proponents of
qualified immunity often argue that the doctrine is necessary
to protect officers from being subjected to second-guessing of
their split-second decisions. Can you explain why this
viewpoint is incorrect?
Mr. Reinert. Yeah, it goes to something that Mr. Schweikert
laid out in great detail in his testimony. The basic reason:
It's unnecessary to protect officers from being second-guessed
is because the substantive law already does that.
That is, I can't violate the Fourth Amendment as an officer
unless I Act unreasonably in light of all the facts that I
know, in light of the circumstances, taking into account split-
second decisions I have to make. So, already I'm protected by
the substantive Fourth Amendment doctrine.
It's therefore unnecessary to have an extra layer of
protection that qualified immunity provides. What that does is
it actually, in a way, protects the officers who come up with
novel ways of violating people's constitutional rights. Then
they're protected because no prior case had said that this
particular way of violating someone's rights was
unconstitutional.
Chair Nadler. Thank you. My time has expired, I yield back.
Mr. Cohen. Thank you, Mr. Nadler.
Mr. Jordan, I believe, defers to Mr. McClintock. Mr.
McClintock, you will be next.
Mr. McClintock. Well, thank you, Mr. Chair.
Mr. Schweikert, does qualified immunity only apply to the
police, or does it apply to all public officials?
Mr. Schweikert. Thank you, Congressman.
Qualified immunity applies across the board to all public
officials who might be sued under section 1983.
Mr. McClintock. So, for example, Lois Lerner violated the
rights of thousands of Tea Party members by abusing the
authority of the Internal Revenue Service to go after them for
their political views. Can she be sued by those victims of her
bad actions?
Mr. Schweikert. In the context of Federal officials, they
are entitled to qualified immunity. There are also additional
difficulties in suing them under the Bivens Doctrine because
section--
Mr. McClintock. I want to--let's just stick to qualified
immunity protects people like Lois Lerner from the effect of
their actions, correct?
Mr. Schweikert. It does, yes.
Mr. McClintock. Could Michael Flynn sue Andrew McCabe for
the violation of his civil rights under this doctrine of
qualified immunity?
Mr. Schweikert. Qualified immunity would apply in any such
suit.
Mr. McClintock. I think it's unfortunate that this issue's
been entangled with the left's attacks on law enforcement and
the rule of law. The Fresno case that you mentioned, involving
the theft of coins seized by obviously crooked police officers.
Now, you say they were shielded from the effect of their--
from being sued by the victim by the doctrine of qualified
immunity. They still broke the law, though, didn't they? They
still stole the coins, didn't they?
Mr. Schweikert. Absolutely, but the fact that they broke
the law, even committed a criminal offense, is simply a
different question than whether there was clearly established
law as to the constitutional violation they committed.
Mr. McClintock. So, once they're convicted of that crime,
can they be sued by the victim, or are those officers still
shielded by qualified immunity?
Mr. Schweikert. Even a criminal conviction would be an
entirely separate matter. Even a police officer who's convicted
of murder, for killing someone, could still theoretically be
protected by qualified immunity.
Mr. McClintock. So, the victim would not be able to recover
the costs that they had borne.
Mr. Schweikert. That's correct.
Mr. McClintock. Because of this constitutional violation.
Mr. Johnson, employer liability that Judge Newman proposed
seems to make sense. It would assure that there's a remedy for
a violation of rights. It assures that individual officers
wouldn't face financial ruin. It gives the local department
then an incentive not to tolerate misconduct. Doesn't that make
sense?
Mr. Schweikert. I think part of it does, yes, sir. I think
that there's already a tremendous incentive on the part of
agencies to deter misconduct.
Completely aside from the qualified immunity, just the
attention given by the media, press, attorneys, and so forth,
there's a tremendous spotlight on law enforcement in the United
States, and there has been for several years now, specifically
regarding allegations of misconduct. So, I don't--
Mr. McClintock. Marshaling public opinion is one thing.
Actually having an avenue that you can take to protect your
constitutional rights, that seems to me an important recourse
that was established by the original law in 1871.
Mr. Schweikert, is it the 1967 Warren decision that is the
root of the problem, or is it the '82 modification on the
clearly established standard?
Mr. Schweikert. I think the 1982 decision Harlow v.
Fitzgerald is really the core of the problem. Because it is the
clearly established law standard, which is what governs today,
and that's the standard that excuses even unreasonable or
intentional constitutional violations for the sole reason that
there doesn't happen to be a prior judicial decision in that
jurisdiction with similar facts.
Mr. McClintock. So, if we codified the 1967 Warren test and
explicitly removed the clearly established standard in the 1982
modification, would that be an improvement and would that solve
the problem?
Mr. Schweikert. I think it would be an improvement. I don't
think it would solve the problem, because that would still
leave some circumstances where someone's rights were violated,
and they're nevertheless left without a remedy.
I think a better solution would be a shared liability
regime between employers and employees, and simply clarifying
that if the individual officer had an actual good-faith belief
in the legality of what they were doing, then it would simply
be the employer who was liable, not the individual.
It's still essential to ensure that anyone whose rights are
violated does get a remedy.
Mr. McClintock. Well, obviously the maxim is that for every
right, there must be a remedy. If you don't have a remedy, then
you really don't have the right.
Mr. Schweikert. Exactly.
Mr. McClintock. Thank you.
Mr. Cohen. Thank you, Mr. McClintock.
Next, we will let the tiger out of the cage. Mr. Raskin.
Mr. Raskin. Thank you, Mr. Chair.
It's disappointed me that one of our esteemed colleagues
chose to recycle debunked partisan dogma about defunding the
police when it is his party that voted to oppose $350 billion
in the American Rescue Plan that the majority used to fund the
police and the firefighters and the first responders and the
public health infrastructure. They voted no, they voted not to
fund the police and the other public employees.
It's his party that had a couple dozen Members who voted
not to award the Congressional Gold Medal to members of the
Capitol Police Force who risked their lives to defend our lives
on January 6th against a lethal, deadly, violent insurrection
unleashed against us.
So, spare us the phony lectures about defunding the police,
because everybody knows who wants to defund the police and who
wants to defend the police. Ask any of the 150 cops who were
wounded, hospitalized, and injured on January 6th right here at
our own house.
It's disappointing maybe because this is an issue where we
can have real bipartisan consensus, and we do. Take Fifth
Circuit Court Judge Don Willett, a Trump appointee, who has now
distinguished himself as a strong critic of qualified immunity,
which he says smacks of unqualified impunity, letting public
officials duck consequences for bad behavior, no matter how
palpably unreasonable, as long as they were first to behave
badly.
So, it's a remarkable doctrine that has evolved up totally
made up by judges.
Now, Judge Newman, you said something which I thought had
penetrating lucidity to it. Does the problem of qualified
immunity go away entirely if we just decide to hold municipal
employers accountable in respondeat superior fashion for the
actions of their employees in tort?
Because the way I see this is that by absolving their
employers, then people want to sue the cops. Of course a cop
making 50 or 60 thousand dollars a year is not really going to
be able to pay if they beat the hell out of somebody.
So, then we've constructed all these perverse doctrines to
try to protect the cop, but we're avoiding the underlying
issue, which is that there's no incentive to change the overall
culture of policing in certain departments where they've given
license to that conduct.
So, would you just elaborate what you said before? Would
the problem of qualified immunity go away if we correct the
decisions that have immunized local police departments and
States and counties?
Judge Newman. Whether it goes away would be entirely up to
the legislation you all came up with. You can make employers
liable and keep qualified immunity. Or you could make employers
liable and abolish qualified immunity. So, whether it would go
away depends on what you do with qualified immunity.
The point is, once you create employer liability, you don't
need qualified immunity. You don't even need liability of the
police officer. If you kept it, the plaintiffs would sue the
employer.
So, if you kept it, it would probably be almost a non-
issue. If you abolished it, then obviously it's a nonissue.
Which way you go is up to you, but if you--
Mr. Raskin. Am I recalling correctly that it was the Monell
decision which said that the localities are not responsible
in--
Judge Newman. Correct. Not responsible unless they meet the
ridiculously restrictive test of a policy of perpetrating
misconduct. The cities don't do that.
Mr. Raskin. Well, look, I just think this is something that
cuts against the fundamental conservative principles and
liberal principles, and we've got to deal with this problem
quickly.
I think you for having this hearing, Mr. Chair. I yield
back.
Mr. Cohen. Thank you, Mr. Raskin. Next, I think we've got
Mr. Roy from Texas. He yields to Ms. Fischbach. I'm sorry, Ms.
Fischbach.
Ms. Fischbach. Thank you, Mr. Chair.
Mr. Johnson, I think Ranking Member Johnson had asked you
about how the Democrats' calls to defund the police and end
qualified immunity have affected morale.
I want to know how this would affect their ability to do
their job, because that's what we're talking about, is having
police on the streets, doing their job, protecting all society.
First with defunding the police, and second with removing
qualified immunity.
Mr. Johnson. Thank you, Representative. Again, I don't want
to, as a Witness, talk about one party versus the other party's
policies.
On this particular issue, though, to answer your question,
police officers, just like anybody else, they're men and women
that we grew up with, we went to school with them, and they
live in our neighborhoods. It affects them, it affects their
morale, just any other profession would be affected by the
constant attacks that somehow police are not to be trusted, are
violent, brutal, racist, and this and that.
By using individual cases out of approximately a million
officers in the United States to say that, well, that's how
they all are, that's how they act. They can't be trusted,
they're brutal, and they're racist. We wouldn't tolerate that
type of broad-brush attack on any other class of citizens. It
becomes acceptable for police.
The effect of that on morale is very detrimental. The
effect of that is bad for public safety. Just like any other
profession, whether it's your auto mechanic, pharmacist, or
journalist, if morale is low in the workplace, performance
suffers.
Unfortunately in this case, when performance suffers, it's
the public that pays the price in terms of public safety.
Ms. Fischbach. Thank you, Mr. Johnson. Not only are they
people they went to high school with, but in my case, I have
several in my family and former law enforcement officers that--
so, they are in our family too and they are part of our family.
I appreciate your insight on that, and it seems to me that
now is not the time to be talking about removing qualified
immunity. Law enforcement is under attack, like you mentioned,
in cities all around America. Members of this Subcommittee have
called for defunding the police, and Members of Congress.
Meanwhile, crime is on the rise, and we may see crime
continue to rise. So, now is the time to be standing behind law
enforcement and supporting them from attacks on their morale
and their ability to perform their job.
Just, as a follow up, Mr. Johnson, Democrats believe that
officers who can demonstrate in a court of law that they are
acting in good faith should be at risk of facing frivolous
personal lawsuits.
What kind of effect will this have on the officers'
willingness to intervene during a crime in progress? Doesn't
ending qualified immunity punish officers who are willing to
rush into volatile situations in an attempt to save lives and
prevent further injury?
Mr. Johnson. Yes, yes, Representative Fischbach, it does.
It creates a disincentive for officers to act. Because what
we're talking about in the qualified immunity context, by
definition, we're talking about situations where an unknown
constitutional right, in fact, unknowable constitutional right,
may cause personal liability to an individual officer.
Because, by definition, it was unknown and unknowable, then
trying to address that cannot, by definition, deter other
misconduct or improve police--policing. Because officers don't
know what's allowed and what's not allowed in terms of this.
In addressing some of the legal arguments about well, this
lawsuit or this class of lawsuits and so forth, I get it and I
understand the argument in terms of large groups of lawsuits
when you look at them as a whole.
When you talk about an individual officer and his or her
mindset, they don't think about, well, it's unlikely that out
of this class, I'm the unlucky person who gets personally held
liable.
The situation that comes about in rank-and-file mind is
that I might be liable. Therefore, it's a disincentive. It's
safer for my career, for my family, for my financial health
maybe just not to take action in this case. I think that's a
situation that none of us wants, on any side of the aisle.
Ms. Fischbach. Thank you, Mr. Johnson. I just want to say
this hearing, we know the reason. This is just another chance
for Democrats to try to vilify a profession which is built on
selflessness and service.
Democrats want more drugs in the community. That's why we
are going to floor to deal with the marijuana bill today. They
want to bail out violent criminals. Now, they want criminals to
be allowed to sue law enforcement officers.
With that, I yield back, Mr. Chair.
Mr. Cohen. Thank you, Ms. Fischbach, my friend and
colleague. I'd share with you the difficulty I have in hearing
from less than two percent of our caucus that's for defunding
the police.
In defense of those Members that want to say they defund
the police, none of them have invited any of us to orgies and
none of us have invited people to snort cocaine.
I now recognize Mr. Hank Johnson.
Ms. Fischbach. Wow.
Mr. Johnson of Georgia. Thank you, Mr. Chair. I thank the
Witnesses for their testimony today.
Mr. Johnson, in your testimony, you stated, quote, ``that a
functioning society requires that reasonable officers be
provided this qualified immunity in applicable civil cases.
Without it, the orderly administration of justice would come to
a halt amidst paralyzing fear of personal liability.'' Am I
right?
Mr. Johnson. Yes, sir, that's in my testimony,
Representative Johnson.
Mr. Johnson of Georgia. You heard Judge Newman, who
testified that--and by the way, Judge Newman spent 42 years on
the U.S. Court of Appeals and as a Federal District Court
judge, he presided at the trial of more 30 police misconduct
cases.
You recall he testified that contracts between cities and
police unions provide that the city indemnify police officers
found liable in lawsuits under section 1983.
Judge Newman also testified that it was his experience that
jurors in police misconduct cases don't know that the
municipality would pay the judgment against the police officer.
They would frequently find the officer not liable, just to
avoid what they thought would be the imposition of liability on
the officer. In other words, the officer would have to pay the
judgment themselves.
Mr. Johnson, you don't disagree with Judge Newman on that
point, do you?
Mr. Johnson. No, Representative Johnson, I certainly don't
disagree with his observations as a sitting judge and an
appellate judge.
Mr. Johnson of Georgia. Let me ask you this--
Mr. Johnson. My experience comes from a different part of
the criminal justice system.
Mr. Johnson of Georgia. Well, we're not talking about
criminal justice system, we're talking about our civil justice
system and its ability to do justice by way of persons who
would be aggrieved by police misconduct.
I know Mr. Johnson, that you would agree that there are
some instances of police misconduct, unnecessary use of force,
those kinds of things do happen, isn't that correct?
Mr. Johnson. Of course, they do, sir. Yes, sir.
Mr. Johnson of Georgia. Yeah. Judge Newman recommends that
Congress create a law that mandates that the city would be
liable to pay any judgment rendered against a police officer
for misconduct. That qualified immunity could remain a defense
available to the police officer.
Mr. Johnson, what is wrong with Judge Newman's proposed
solution?
Mr. Johnson. Representative Johnson, I would direct the
Subcommittee to the submitted written testimony of the National
Sheriffs Association, for example, for the concerns that
employers have regarding that. I think that issue--
Mr. Johnson of Georgia. I mean, we're talking about putting
it on the employer to have to pay any judgment rendered against
their employee. What about that solution do you disagree with?
Mr. Johnson. That's what I--and I don't want to step out of
my lane talking for the sheriffs and the chiefs, but--
Mr. Johnson of Georgia. Well, well, I mean--
Mr. Johnson. Since you ask, I'll answer the question.
Mr. Johnson of Georgia. This doesn't really require much
analysis. It's a very common-sense solution to a real problem.
Citizens have been stopped from holding rogue police officers
accountable when they commit misconduct.
The denial of justice in those kinds of circumstances due
to this doctrine of qualified immunity is an injustice. We're
just simply talking about how to render an injustice something
that does not continually happen in these cases in America.
So, what criticism would have on Congress on passing a law
that imposed liability on governments for the actions of their
employees?
Mr. Johnson. Thank you, Representative Johnson. I
understand the argument.
My concern on that would be that when we're talking about
liability itself, whether it's on the individual officer or on
the employing agency, our view of qualified immunity, immunity
in general in this context, whether it's for the officer or the
employing agency, is that in fairness and in justice, it ought
not be imposed if we're talking about a liability predicated
upon the violation of a constitutional right when that right
was not yet known at the time that the--
Mr. Johnson of Georgia. Well, you could still have the
doctrine of qualified immunity in place, but you would simply
have a situation where juries would know that if they found a
police officer liable, then that police officer would not be
personally liable. It would be the city that would pay the
judgment. What's wrong with that?
Mr. Cohen. Quickly respond, we're over time. If you quickly
respond to the--I'd appreciate it.
Mr. Johnson. Yes, Chair. I think the problem with that,
writ large, is that the same reason that we don't want jurors
to know, hey, if this person's liable, someone else is going to
pay the bill. Because it tends to engender greater verdicts
than we would otherwise have based simply on the evidence.
Mr. Johnson of Georgia. You just simply don't want to have
police officers--
Mr. Cohen. Time's up.
Mr. Johnson of Georgia. Held liable, do you.
Mr. Cohen. I've got to call time.
Mr. Johnson of Georgia. With that, I yield back, Mr. Chair.
Thank you.
Mr. Cohen. Thank you, thank you, Mr. Johnson. Next, I'd
like to recognize Mr. Roy.
Mr. Roy. I thank the Chair, thank you for holding this
hearing.
I'd like to note that I'm glad that my friend from Maryland
who I don't see on the screen anymore is committed to attacking
judicial activism as much as I like to do. Is now quoting my
constitutionalist friend and Fifth Circuit judge Don Willett,
whose daughter is a classmate of my son's school in Austin,
Texas. He's a good friend.
Notably not being cited right now by my Democratic
colleagues is my friend and great American devoted to the
Constitution, Justice Clarence Thomas, who said in his
concurrence in Ziegler, ``I write separately to note my growing
concern with our qualified immunity jurisprudence.''
Until we shift the focus of our inquiry to whether immunity
existed in common law, we will continue to substitute our own
policy preferences for the mandates of Congress. In an
appropriate case, we should reconsider our qualified immunity
jurisprudence. Well, I'm glad we're all agreeing with Clarence
Thomas today.
The problem is that, as my friend from California, Mr.
McClintock, suggested, is that my Democratic colleagues are:
(1) Targeting almost entirely and solely police officers and
that is entirely political.
(2) Intertwining that attack with a coordinated defunding
effort, notwithstanding my friend from Maryland's
characterization to the contrary.
Failing to acknowledge, for example, the $150 million cut
in Austin, Texas; the $22 million in Baltimore, Maryland; the
$16 million in Boston, Massachusetts; the $1 million in
Burlington, Vermont; the $10 million in Denver, Colorado; $2
million in Hartford, Connecticut; $42 million in Kansas City;
and $150 million Los Angeles, CA.
Of course, notably, most of these jurisdictions the
following year refunded those cuts because they saw the
foolishness of the kneejerk reaction that destroyed and
devastated our police officers' ability to do their jobs across
the country.
Austin puts money back in their budget, and guess what? The
police academies are completely destroyed. Now, you have to go
back and try to figure out how to recruit. Now, you don't have
people being able to answer 911 calls.
Now, my Democratic colleagues want to talk about qualified
immunity. Then they say, oh, you voted against $350 billion in
funding. They don't tell you that was in a $1.9 trillion
monstrosity filled with all sorts of other socialist, big
government garbage.
They don't tell you that the $350 billion has language in
there saying that it's about community investing. Not just
money for cops to be able to go do their job, but community
investing.
I heard the Chair of the Judiciary talk about, oh, I was
fine with moving money from the cops to some other department.
Well, of course he takes that money and take it away from cops
and go dump it into some social engineering program in New
York, New York City.
That's the reality of what we're dealing with instead of
being able to sit here and say let's actually have a discussion
about qualified immunity. Last summer my colleagues forced a
vote and didn't give us the chance to amend on the floor or
have a debate on actual qualified immunity. Instead of just
gutting it and targeting cops.
I actually think we're having a productive conversation
here with respect to what Judge Newman has produced and put
forward that I think my friend from California said positive
things about, and that Mr. Schweikert from Cato has said.
So, I would just like to kind of throw out there in my last
two minutes, and I'd like to throw a question to Judge Newman.
Do you believe, sir, Judge Newman, that if you were to go
down the road you suggested, that would--you're talking about
applying that across the board, not just to police departments,
right? That would try to address the qualified immunity problem
for government officials of all stripes.
Judge Newman. Yes, just like 1983 said. Whenever somebody
acting under color of law violates--denies the constitutional
rights of a person, any person, under color of law. It could be
a jailer. It's certainly not limited to police officers.
Mr. Roy. Okay. Well, I appreciate that. Then if I made
direct a question to Mr. Mangual and Mr. Johnson.
How would you gentlemen view the possibility of going down
the road of what Judge Newman puts out there, that we have
liability for the cities, for the departments, etc., as opposed
to targeting the individuals, and then let that get sorted out
between the individuals and the cities, the sovereigns, if you
will?
Mr. Mangual. I certainly think that's a proposal that's
worthy of close consideration. I would note that it mirrors
exactly what happens right now.
As I said earlier in my testimony, 99.98 percent of all
dollars recovered against individual police officers are
actually paid by the governmental entity that employs them.
That's already the case. So, I do think it's certainly worth
considering.
What I would add to that, though, is addressing the problem
of Saucier and its reversal. I think allowing courts to
continually punt constitutional questions leaves the law
underdeveloped in the civil rights arena. Re-instituting that
proper sequence I think would go a long way.
Mr. Roy. Well, thank you. I got 15 seconds left. I think
Mr. Johnson answered Mr. McClintock's question on that. I would
just note that this idea of making sure this applies beyond
police officers is critically important.
I'll point out a case in Colorado Springs where a case
worker for the El Paso County Department of Human Services
received permission from her supervisor to inspect a four-year-
old girl's buttocks, stomach, and back for signs of physical
abuse. Did so, took pictures without approval from the parents.
The parents had no recourse. We need to address this across the
board.
Mr. Chair, I'm over my time, I appreciate it.
Mr. Cohen. Thank you, Mr. Roy.
I'd like to make a little mea culpa, I guess. I've been
teasing you a little bit about the sex orgies and the cocaine.
I just recently learned that Mr. McCarthy had a closed-door
hearing with Mr. Cawthorn, and he apparently told Mr. McCarthy
that what he said was untrue.
Now, Roger Stone says that's not true, that Mr. Cawthorn
still backs it up. I'll take Mr. McCarthy's statement.
Ms. Ross, you're recognized for five minutes.
Ms. Ross. Thank you, Mr. Chair, and thank you to all the
Witnesses for testifying.
I'm thrilled that I went after Mr. Roy because we agree
completely on this. The problem of qualified immunity goes well
beyond the police. As a former civil rights litigator, I
actually rarely sued the police. I sued lots of other people,
and they invoked qualified immunity.
So, we should be addressing this problem writ large. Many
examples in the public mind right now involve the police, and
we shouldn't exempt them from any change in qualified immunity.
We have had egregious situations in North Carolina with the
Department of Social Services. We've seen egregious situations
with sexual misconduct and treatment of women. We've seen
egregious situations with racial discrimination and
discrimination against immigrants. All those issues should be
on the table today.
As we know, the doctrine of qualified immunity protects
State and local officials, not just the police, where they can
only be held liable for violating somebody's rights if a court
has previously ruled that the actions are unconstitutional, the
actions. Therein lies the problem.
If no decision exists, the official can be immune from
liability, even if they intentionally violate the Constitution.
Qualified immunity acts like a time warp. In its current form,
the doctrine allows conduct to be judged by completely outdated
standards and parts of our history that we are trying to
rectify. It doesn't let us rectify history.
Public officials should not be allowed to avoid the
consequences for egregious actions by hiding behind judicial
opinions that previously found conduct acceptable. The actions
of law enforcement and other public officials must be judged
under evolving standards of what constitutes constitutional
conduct, not decades- or centuries-old endorsing of
unconscionable practices.
My first question is for Mr. Schweikert. In your written
testimony, you cite several cases in which qualified immunity
was granted because the cased differed just slightly from
clearly established precedent. In the interest of time, I'm not
going to go through a couple of them. My question is how has
the clearly established law test stunted the development of
constitutional law?
Mr. Schweikert. Thank you very much for the question. It's
has stunted the development of constitutional law because the
Supreme Court has held, as Mr. Mangual has previously
discussed, that courts are allowed to dismiss a case by saying,
well, we're not even going to decide whether this was
constitutional or not, we're just saying it's not clearly
established. So, qualified immunity, case dismissed.
Which means the law then does not become clearly
established going forward. So, this is why Judge Don Willett
has called qualified immunity a catch-22.
It means that, in fact, the exact same misconduct could be
committed the very next day and again, again, and again, and it
could still be excused based on qualified immunity because
courts refuse to decide the constitutional question, especially
in the most difficult cases where clarification of the law is
most needed.
Ms. Ross. Thank you very much. Mr. Ago, we got a great
example from Mr. Roy earlier of local officials who violated
constitutional rights, but granted qualified immunity not in
the law enforcement context. Could you share with us other
examples outside of the law enforcement context?
Mr. Ago. Thank you, Congresswoman Ross. The Lawyers'
Committee is concerned about law enforcement because of the
devastating and differential impact of police abuse and
misconduct against communities of color.
That said, there are substantial numbers of examples
outside the law enforcement context where, for example, public
school teachers abuse their power. In situations like what you
mentioned, Congresswoman Ross, social workers abuse their power
and violate the constitutional rights of the people that
they're supposed to be serving.
So, that there are lots of examples outside of law
enforcement. The Lawyers' Committee's concern is law
enforcement, though.
Ms. Ross. To our distinguished judge with my last 16
minutes, if we--16 seconds, I'm sorry. I wish I had 16 minutes.
Would your solution deal with this broad problem much more
effectively?
Judge Newman. The answer is yes, I think it would make an
effective remedy. I think it would make it a modification that
has some chances of being enacted.
From the controversy I've heard today, I despair that, as
what happened 30 years ago when I testified to you, nothing
happened. So, I think you ought to consider municipal
liability, employer liability generally, to get something done
about this problem.
Ms. Ross. Thank you, and I yield back.
Mr. Cohen. I am going to yield the Chair to Congressman
Ross so she can have the opportunity to introduce and recognize
her distinguished colleague.
Ms. Ross. [Presiding.] Ms. Garcia, you are recognized.
Ms. Garcia. Thank you, Madam Chair.
Thank you, Mr. Chair, for convening this very important
hearing.
There seems to be some confusion as to why we are even
here, and it has been really hard to sit here and listen to
some of the comments that are made from the other side of the
aisle about the reason for this hearing, and what Democrats do
or don't believe, and even a Witness referred to the policies
of the parties. This is not a discussion of a policy of any
party, but it is, in fact, a very serious discussion about law,
and law that was made by a court, and what we need to do to
make some reforms, because reforms are needed. To hear my
colleagues talk about defunding police and how Democrats are
doing nothing but really focused in a coordinated effort to do
this, I mean, that is just nonsense.
All they need to do is to read the President's proposed
budget, and the President himself has said that we need to
invest more money in funding effective, accountable community
policing, not less. His budget reflects that, including by more
than doubling cops hiring programs--300 new deputy marshals;
$20.6 billion in discretionary funding for Federal law
enforcement and State and local enforcement; crime prevention
programs; $537 million to put more police officers--more police
officers--on the beat for accountability of community policing.
That is the keyword. It is about behavior; it is about
accountability.
I am glad that Ms. Ross mentioned that this is not just a
discussion about police. We know there are good police
officers, and we also know there are good public officials.
However, just like every crate of apples, the old saying says,
there is always one bad apple in the crate. Unfortunately, I
think that is what we are focused on today.
So, public officials, not only law enforcement, abuse their
power and sometimes weaponize it against our most vulnerable
communities. We cannot turn a willful blind eye to that fact.
Revising the qualified immunity doctrine is a step in the right
direction. The qualified immunity doctrine, in practice, ends
up being absolute immunity and, effectively, deprives victims
of their day in court.
Ms. Wright, I want to start with you. You mentioned the
Taylor case, which in no way can be justified. Those officers,
or those, I guess, jail attendants were acting in good faith;
that is a defense. When we talk about qualified immunity, it
really isn't just about those officers, because, in fact, those
officers don't really pay the judgments, is that correct?
Ms. Wright. That is correct, Congresswoman. In my
experience, in almost all cases, it is not the officers on the
line for the financial responsibility. It is their employers,
or the State, or municipality.
Ms. Garcia. Okay. This proposal to change it to an
employer's liability, and really, it is their employers who end
up writing the check because of the rules of indemnity. I know
that there are some municipal governments throughout this
country who, frankly, some have had to raise taxes to pay
judgments. Some have had to float judgment bonds to pay those
settlements. So, what is that doing to local governments and
their ability to really focus on putting the police on the
street, putting the crime prevention programs forward, and
making sure that they keep the community safe?
Ms. Wright. What we have seen in municipalities and
jurisdictions where they have to pay these large settlements is
that what often follows is a direction to police officers to
not violate the Constitution in that specific way. So, it is a
way of actually, because the citizens, the taxpayers, are
ultimately really the ones who suffer, because it is their
money that pays the judgment, there is pressure by the
employer, by the municipality, to make sure that the officers
are not doing the same thing again, because that will result in
a political price. So, I think that proposal and municipalities
being responsible actually increases accountability and
officers acting within the law.
Ms. Garcia. So, Mr. Schweikert, could you give us examples
where the defense of good faith did work? I mean, that it was
upheld in court and the officer was absolved of any
accountability and liability.
Mr. Schweikert. Sure. Thank you for the question.
I mean, the only think I would clarify is that qualified
immunity that exists today is not a good-faith standard. It has
nothing to do with whether officers were acting in good faith.
In fact, in many cases officers are explicitly acting in bad
faith, and they still receive qualified immunity.
Two examples that I mentioned were the Jessop case, where
officers were alleged to have stolen money for their own
personal enrichment. They received qualified immunity.
The Frasier case, where officers were--and I think, this
does relate to a point that Mr. Johnson has repeatedly said,
that this only applies in unknowable constitutional violations,
and that is simply untrue. The officer in the Frasier case--
Ms. Ross. Mr. Schweikert, could you wrap up?
Mr. Schweikert. Yes.
Ms. Garcia. We are running overtime.
Mr. Schweikert. Of course.
The officers in Frasier were explicitly trained on this
man's First Amendment rights and they violated it knowingly,
and they still received qualified immunity.
Ms. Garcia. Thank you, Madam Chair.
I am hopeful that my colleagues across the aisle will vote
for the President's budget with all that money, all those
investments to reduce crime and help our police officers.
Thank you.
Ms. Ross. Noted.
Mr. Owens, you are recognized.
Mr. Owens. Thank you, Madam Chair.
Like other States in America, Utah has an incredible law
enforcement community. These men and women are heroes. The vast
majority of them are good, honest officers who risk their lives
every day to keep our communities safe.
With that, from what I have heard today again from my
officers is eliminating the qualified immunity would impede the
abilities of police officers to do their job. Our friends at
the National Fraternal Order of Police have said the following,
and I quote:
Every single factual scenario a [police] officer encounters
is different and unknown. It is almost impossible for an
officer to determine how a legal doctrine will apply to a
split-second factual scenario. Thus, . . . the reasonable
officer needs to be afforded a certain degree of discretion to
make split-second decisions in situations that could risk
lives, including their own, and put them at risk.
Qualified immunity does not protect officers who knowingly
violate the law, nor does it affect criminal proceedings or
internal investigations. This doctrine is vital to law
enforcement officers who need this protection to perform their
discretionary functions fundamental to their law enforcement
and public safety mission. The FOP will not yield in our
efforts to preserve the existing qualified immunity doctrine.
I end quote with that.
Mr. Mangual, does your research show that there is a
significant number of claims against law enforcement officers
that are denied because of qualified immunity?
Mr. Mangual. It does not. So, far as I am aware, the data
are very clear in showing that qualified immunity accounts for
a very, very small slice of police litigation outcomes.
Mr. Owens. Okay. Thank you.
Mr. Johnson, I have heard from my local law enforcement
officers, especially those in rural areas, and they are having
trouble recruiting good candidates because of a number of
factors, including a toxic defund the police movement we have
all had to deal with the last couple of years that broad-
brushed the meaning of an honorable profession, and now,
inflation. In your opinion, will stripping law enforcement
officers of qualified immunity hurt recruitment efforts,
especially, specifically, in rural areas?
Mr. Johnson. Yes, Representative Owens, it would. The
reason I say that is because there are so many hurdles that a
man or woman has to go through to become a police officer in
the first place--education, background checks, lie detector
tests, drug tests, psychological evaluations, training, and so
on.
The men and women that we recruit--and rightfully so--are
well-qualified for these positions. By definition, they are
also well-qualified to do other things, too. So, if this law
enforcement profession becomes even more difficult and
dangerous than it already is, and the men and women are
demonized unfairly for trying to do a good job, then we can
only expect that recruitment and retention are going to go
down, and that is exactly what we are seeing in rural
departments and in large agencies across the United States.
Mr. Owens. Thank you.
Then, Madam Chair, I yield back my time. Thank you so much.
Ms. Ross. Ms. Bush, you are recognized.
Ms. Bush. Thank you, and I thank you for convening this
hearing.
In America, the legal shield and court-made doctrine of
qualified immunity has allowed police officers to kill Black
people with impunity. When a police officer shot a 10-year-old
child in Georgia, the 11th Circuit U.S. Court of Appeals held
that the officer was entitled to qualified immunity. When
police officers tazed an unarmed pregnant woman in Seattle, a
court found that the officer was entitled to qualified
immunity. When officers set a man on fire, the Fifth Circuit
held that officers involved were entitled to qualified
immunity.
All of this is happening as our country is reckoning with
the reality of record-breaking police killings. There were only
15, ``one'' ``five,'' 15 days last year in which police
officers didn't kill someone. The year 2021 broke the record
for police killings in this country, 1,055 deaths by law
enforcement, and that is likely an undercount.
St. Louis continues to lead the country year after year in
police killings per capita. In a country that is governed by
the so-called rule of law, you have to ask yourself, are police
officers above the law? Does the Constitution not apply to
Black people?
Mr. Ago, I believe that true justice is saving lives. Can
you please explain why achieving true justice demands that we
reconsider the doctrine of qualified immunity?
Mr. Ago. Thank you for your question, Congresswoman Bush.
The problem with police misconduct and police violence is
that it is meted out against communities of color in a
devastating and differential way. Those are facts that we
cannot get around.
By eliminating qualified immunity, what you do is you start
to bring accountability for those situations where police
violate the civil rights predominantly and disproportionately
borne by people of color. What that creates is a cycle of trust
and safety and better policing, because accountability breeds
trust in the system by people who see that officers who violate
the civil rights of people, predominately people of color, when
we are talking about the statistics, then when those officers
are held accountable, the other members of the community begin
to trust that the system works for them. They begin to, then,
trust policing. It is a cycle that benefits communities of
color.
Ms. Bush. Absolutely. Thank you, Mr. Ago.
Qualified immunity signals to law enforcement that they can
get away with unconstitutional conduct. It is why I am happy to
support Representative Pressley's Ending Qualified Immunity
Act, and it is why I believe that any comprehensive police
reform must include ending qualified immunity.
Professor Reinert, in the aftermath of the Civil War, the
Ku Klux Klan and other White supremacist vigilantes violently
attacked Black people and infiltrated law enforcement
departments across this country, prompting the need for legal
protections.
Can you talk about the history of qualified immunity and
the way in which it is deeply tied to our country's history of
enslavement and White supremacy?
Mr. Reinert. Yes, I would be happy to. Thank you for the
question.
I think the first part of it goes to the premise of your
question, which is that the point of the 1871 Civil Rights Act
was both to provide a remedy for duly created rights and, also,
to take enforcement of that remedy away from States because of
the mistrust that States would actually enforce the
Constitution against their own officers.
We fast forward to the Supreme Court's creation of the
doctrine of 1967. It was in the context of arresting of people
who were protesting desegregation. It was part of the Freedom
Riders. That is where the Court first recognized this good-
faith immunity. It is a way to undermine all the goals that the
Reconstruction Congress was trying to achieve when it enacted
the 1871 Civil Rights Act.
When the Court altered the immunity doctrine in 1982 to
make it even more protective of police officers, and also,
added all sorts of procedural protections along the way, as my
written testimony details, it takes us even farther from
enforcing the vision of the Reconstruction Congress, which was
to truly enforce these transformative rights after the Civil
War.
Ms. Bush. Thank you. Thank you so much.
As lawmakers, we must be dedicated to saving lives,
especially Black lives. To do that, we must confront and
acknowledge the forces of White supremacy that we are up
against. The truth is that less than two percent of police
officers have been charged with a crime for police killing as a
result of qualified immunity. So, true justice and true
accountability means ending this legal shield.
Thank you and the truth you just heard.
I yield back.
Ms. Ross. Ms. Jackson Lee?
Ms. Jackson Lee. Thank you so very much.
It leaves me to at least a moment of concluding the essence
of this hearing and to make a proclamation or pronouncement
that we can deal with qualified immunity, and we can save
lives.
Let me indicate, for the framing of this, that both the
Sixth and Seventh Amendments are seemingly violated with
qualified immunity. In simple layman terms, what qualified
immunities existence does is it stops everyone at the
courthouse door. Because what happens is the court says you
have no case because there is qualified immunity. You don't
even get to the facts circumstance before cases are dismissed.
Evidence the Robbie Tolan case that went up to the United
States Supreme Court on the basis of a Federal District court
dismissing a police case, an officer out of Bellaire, Texas,
before facts could even be heard. So, even out of fairness,
qualified immunity must be subject to modification because you
close the courthouse door.
Let me ask these questions, and as I do so, I raise these
questions in the name of good law enforcement, Captain, across
America. I raise these questions in the name of Danny Ray
Thomas, Robbie Tolan, Nicolas Chavez, George Floyd, Pam Turner,
Breonna Taylor, Daunte Wright, Eric Garner, and many others.
So, let me just say to you, have you seen a massive
movement of police officers, good police officers, not rising
to the occasion because of false rumors about local
jurisdictions not wanting police officers? Captain?
Captain Thomas. No, ma'am, Congresswoman, I haven't seen
that.
Ms. Jackson Lee. With the issue of qualified immunity--and
I think you very much; we should note NOBLE has officers in all
categories. You have officers, leading major chiefs as well,
that are members of your organization.
In the instance of qualified immunity, is my simple
definition one that you can accept, which means qualified
immunity keeps the offended persons from even getting into the
courthouse to get the facts of what happened?
Captain Thomas. Yes, ma'am, that is true.
Ms. Jackson Lee. Is it not wrong to keep people out of the
courthouse, so that facts can be portrayed, whether it is the
offendant police officer or the family who has lost a loved
one?
Captain Thomas. No, ma'am, I feel that everybody needs
justice. The qualified amendment must be preserved and
reformed. Everybody needs justice. So, they should be heard in
the courthouse.
Ms. Jackson Lee. Thank you.
Judge Newman, can we articulate your offering of the
municipality can be sued, but you are not precluding the
officer from being a defendant as well?
Judge Newman. I am not precluding it, but I am saying the
suit against the municipality would be much more successful
because the municipality does not have the defense of qualified
immunity.
Ms. Jackson Lee. The monetary capacity, you are suggesting,
would be in the realm of the municipality? Is that what you are
saying?
Judge Newman. That is correct. It has been pointed out they
now indemnify, but you have to be careful here. Indemnifying
means paying a judgment already entered against the employee.
So, if there is no judgment against the employee, there is no
indemnity. If the suit is directly against the employer and the
employer has no qualified immunity, that is clear; it is a much
more successful remedy than a suit against the officer.
Ms. Jackson Lee. What I would say, Judge, is that I think
this should be one of the frameworks--and I mean not the only
one--that we look at in terms of dealing with qualified
immunity. My point is you are blocked at the courthouse door if
you use qualified immunity as saying there is no reason to even
hold a trial. You understand what I am saying?
Judge Newman. Yes, that certainly happens sometimes, but
there are many cases where--in other words, if the case is
dismissed as a matter of law at summary judgment because the
facts are undisputed. There are many cases where the facts are
disputed, where it doesn't go off on summary judgment. It goes
to trial. As I indicated, I tried 30 of these many years ago,
and they very often end up with a verdict for the police
officer or the public employee.
Ms. Jackson Lee. Thank you.
The facts in the Robbie Tolan case were the judge dismissed
it on, as I understand it, summary judgment, just on the fact
that qualified immunity existed, and gave that permissiveness,
that protection to the officer.
Let me quickly go to Ms. Wright.
I want to thank Mr. Reinert and Mr. Schweikert for
articulating the qualified immunity lack of being able to have
case law.
Let me indicate to Ms. Wright, again, what a heinous set of
circumstances as it relates to your client. Can you tell me the
heinousness of the victimization of defendants or incarcerated
persons when there is qualified immunity?
Ms. Ross. Ms. Wright, briefly. I know this is a serious
matter, but--
Ms. Jackson Lee. I have some issues to put into the record.
I yield. Thank you, Madam Chair.
Ms. Wright. Just briefly, I will say I have described what
happened to Mr. Taylor, but the people who are imprisoned are
among the weakest in our community because they rely on the
State for everything.
Just now before the Supreme Court is a case where guards
knew a person was suicidal, put him in a cell with a 30-foot
cord and watched him commit suicide without intervening or
calling for help. Those guards got qualified immunity. So, it
is something that happens often within the prison context.
Ms. Jackson Lee. Let me thank the Chair for her indulgence
and, as well, all the Witnesses.
I would like to put into the record a Washington Post
article, March 29, 2022, ``Black Americans are killed at a much
higher rate than White Americans. Although half of the people
that are shot and killed by police are White, Black Americans
are shot at a disproportionate rate.'' This article will relay
that.
Then, a full list of Black people killed by police in 2021.
That is a Newsweek article on12/28.
Madam Chair, I yield back by saying this Committee and the
Judiciary Committee can find solutions to this, and the
Witnesses have given us a roadmap which we can follow.
I thank you so very much, and I yield back.
Ms. Ross. Without objection.
[The information follows:]
MS. JACKSON LEE FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Ross. Mr. Johnson?
Mr. Johnson of Louisiana. Thank you, Madam Chair.
Just briefly, I also have a unanimous consent. I wanted to
enter into the record a list that our Committee put together of
Democrat-led cities that have defunded the police with a total
of $1.66 billion cut. Please enter that.
Ms. Ross. Without objection.
[The information follows:]
MR. JOHNSON OF LOUISIANA FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Louisiana. Just one point of personal
privilege. Mr. Raskin mentioned, I think when I was out of the
room, that my statements about Democrats wanting to defund the
police was inaccurate in some way. So, I was encouraged to hear
him express his support, suddenly, on behalf of Democrats, for
funding the police. We certainly welcome that.
The Democrats' $1.9 trillion partisan spending legislation
does not specifically direct funding of local law enforcement
agencies. I have urged the Biden Administration myself, Madam
Chair, to correct that error in the rulemaking process by
specifically directing a portion of that funding to local
police departments and have gotten zero response.
Ms. Jackson Lee. Would my good friend yield? Would my good
friend yield?
Mr. Johnson of Louisiana. Well, I am almost--I have one--
Ms. Ross. No, we are going to conclude today's hearing.
Mr. Johnson of Louisiana. The Ranking Member has the
privilege of making--because the Chair does all the time, and
Ms. Jackson Lee went over a minute. I am finished with one
statement.
I want to invite Mr. Raskin to join me in signing on that
effort to the White House, and I will send him the
correspondence today.
I yield back.
Ms. Jackson Lee. Will the gentleman yield?
Mr. Johnson of Louisiana. Yes, ma'am.
Ms. Jackson Lee. If I might, Madam Chair, if he would
yield?
There are a lot of stereotypes that are going around. I
respect individual positions of Members, Republicans and
Democrats. I assume you do not associate with your Republican
friends that consider January 6th just a group of tourists.
Then, we may have a big tent; you might have a big tent.
I think you need to look at the facts by piercing those
statistics that you have suggesting broad definitions. We have
the right to have people with differing opinions, but I can
assure you there are enough relatives of police officers in and
among Democratic Members of Congress, that we are also
respecters of the law.
I yield back.
Mr. Johnson of Louisiana. Well, I respect you, of course,
my colleague, and I acknowledge that. I will tell you that it
has been a position of Members on this Committee whom I quoted
earlier who have wanted to defend the police. That is a fact.
I yield back.
Ms. Ross. Okay. Thank you very much for this conclusion.
I do want to note that Mr. Roy and I are in complete
agreement about how to solve this problem, and I hope that that
and our judge's suggestion will help provide a roadmap going
forward.
This concludes today's hearing. I want to thank all our
Witnesses for appearing today.
Without objection, all Members will have five legislative
days to submit additional written questions for the Witnesses
or additional materials for the record.
The hearing is adjourned.
[Whereupon, at 12:28 p.m., the Subcommittee was adjourned.]
APPENDIX
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]