It is indeed rare, if not unprecedented, to see a highly diverse group of organizations such as the conservative Alliance Defending Freedom, the liberal American Civil Liberties Union, the libertarian Cato Institute and the Reason Foundation on the same page as the NAACP Legal Defense and Education Fund on the same issue.
But it is happening as the U.S. Senate takes up police reform. The issue is a legal doctrine known as qualified immunity.
These diverse organizations all agree that qualified immunity is bad law and should end.
The discussion is particularly high-powered today because it stands at the center of police reform that many see is needed in the wake of incidents such as the murder of George Floyd by former police officer Derek Chauvin.
The nation’s first major civil rights law, the Civil Rights Act of 1871, passed shortly after the Civil War, contains a provision known as Section 1983 that protects citizens from violation of their civil rights by government officials. It says that a government official who violates a citizen’s civil rights is liable and can be sued by the injured party.
Thus stood the law, until a series of Supreme Court decisions from 1967 to 1982 reinterpreted its application.
A new standard, qualified immunity, was added saying that it must be shown that rights were violated per “clearly established law.” That is, there must be a previous case in which rights were violated the exact same way.
So, if a citizen’s rights are violated but there is no previous case in which rights were violated in exactly that way, there is no protection. The government official is immune from liability.