Last week, Senator Tim Scott (R-SC) suggested he was seeking a compromise designed to unstick bipartisan negotiations over federal police reform. Scott's proposal relates to qualified immunity, a legal doctrine cabining federal liability against individuals, including police officers, acting "under color of" state law. Both progressive and libertarian policy advocates have been pushing to abolish this doctrine, but to date, congressional partisans have broadly split on the issue.
My colleague Rafael Mangual and I have argued that Congress should address qualified immunity doctrine, in some fashion. I have not yet seen Senator Scott's draft text, but it's being touted as focusing on how courts apportion liability to municipal governments rather than individual officers. That makes some sense: There is little practical difference in whether liability attaches to officers or municipal governments, since municipalities almost always indemnify officers anyway. But we should think clearly about what qualified immunity and related reforms are likely to do—and we should be reluctant to oversell these reforms' likely impact in changing police behavior.
James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute. He is the author of “The Unelected: How an Unaccountable Elite is Governing America.” Follow him on Twitter here.
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