by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Biden administration frequently relies on a controversial legal tool to defend law enforcement officers accused of misconduct, even as the president’s congressional allies work to abolish it.
Democrats behind a major criminal justice reform bill named for George Floyd want to put limits on qualified immunity, a defense available to law enforcement that is very difficult for plaintiffs to surmount. Though President Joe Biden supports the bill, administration lawyers are arguing for qualified immunity in civil rights cases from Massachusetts to Texas to the Supreme Court.
The pattern suggests the Biden administration is as much a barrier to reform-minded activists as police unions and Republican lawmakers. The administration has not implemented policy changes that could significantly curtail police immunity or hinted that such changes are in the offing. And while the decision whether to assert qualified immunity rests with the officer-defendant, government lawyers long accustomed to qualified immunity and its benefits will find nothing challenging about Biden’s approach.
Overcoming qualified immunity requires a plaintiff to show an officer’s misconduct violated “clearly established law.” It’s a hard test to pass. As the rule operates today, plaintiffs must point to an earlier decision with near-identical facts that makes clear the misconduct alleged in their case is indeed unlawful.
The most striking example of the government’s continued reliance on qualified immunity came in a February lawsuit arising from the 2020 Floyd riots. …
… The day after Biden took office, the government joined a motion to delay those proceedings to give new Justice Department officials “sufficient time to become familiar with the issues.” But there was no sign of a course correction in its next filing. The government on Feb. 16 filed a motion to dismiss the case, arguing that the line-level officers are entitled to qualified immunity, among other things.