Sen. Mike Braun (R-Ind.) is introducing legislation on Tuesday to scale back qualified immunity, an idea that divides Senate Republicans.
Braun’s bill, titled the Reforming Qualified Immunity Act, would get rid of a current standard that shields police officers from civil lawsuits if their behavior didn’t violate a “clearly established” law.
Instead, a police officer would be eligible for qualified immunity if the conduct in question “had previously been authorized or required by federal or state statute or regulation” or if a court has found it is “consistent with the Constitution and federal laws.”
Braun, in a statement, argued that it’s time for Congress to weigh in on the scope of qualified immunity, a legal doctrine created through court rulings that shields police officers from civil lawsuits.
“To claim qualified immunity under the Reforming Qualified Immunity Act, a government employee such as a police officer would have to prove that there was a statute or court case in the relevant jurisdiction showing his or her conduct was authorized: a meaningful change that will help law enforcement and the citizens they protect,” he added.
Whether or not to make changes to qualified immunity has emerged as a significant sticking point that could bar getting a police reform bill through Congress and signed by President Trump.
The White House and some Republicans — including Sen. Tim Scott (R-S.C.), the only Black GOP senator, who spearheaded the Republican police reform proposal — view qualified immunity changes as a “poison pill” that sinks the prospects for a bill.
Sens. Roy Blunt (R-Mo.) and John Cornyn (R-Texas), two members of GOP leadership, told The Hill late last week that they did not expect changes to qualified immunity to end up in the Senate bill before, or if, it is able to pass the chamber initially.
But Braun and Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.), in particular, have indicated they are open to discussing changes.
Braun told reporters last week that he had interest from other GOP senators, though he declined to say if it could get 60 votes.
“If you want to do nothing with qualified immunity, to me, we’re missing an opportunity because it’s based on transparency and accountability, and you’ve got all of that in most other areas other than government related stuff,” Braun said at the time.
The House Democrats’ bill, which is scheduled to go to a vote on Thursday, would overhaul qualified immunity by allowing individuals to receive damages in civil court “when law enforcement officers violate their constitutional rights by eliminating qualified immunity for law enforcement,” according to a Judiciary Committee fact sheet.
The measure would specify that a defendant is not immune from lawsuits just because they were acting in a way they thought was reasonable or lawful at the time or because they weren’t violating a “clearly established” law.
Updated 11:44 a.m.