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Democrats push bigger role for courts to curb police misconduct

Congressional Republicans and Trump administration almost certain to oppose provisions

A House bill released Monday to address police misconduct includes provisions that would allow more civil lawsuits against local law enforcement officers for illegal or unconstitutional actions, part of a section that House Democrats aimed at increasing accountability through the nation’s courts.

Experts say these types of changes to the “qualified immunity” law might be the most effective step Congress can take to overhaul police culture nationwide. The push has some bipartisan backing, although a Trump administration spokeswoman called it a “nonstarter” and it will likely face strong opposition from law enforcement unions and advocacy groups and tough-on-crime politicians.

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The provision seeks to undo decades of Supreme Court decisions on an 1871 civil rights law that has given law enforcement officers a strong shield from facing financial damages in court — and that has broadened in recent years.

Those wronged by police have asked the Supreme Court to revisit those previous decisions, including several cases now pending before the justices. But the court has declined to do so, even though Justices Clarence Thomas and Sonia Sotomayor, from their different ideological wings of the court, have urged the court to take a new direction.

For example, last month, the Supreme Court declined to review a lower court decision that two California residents could not pursue a lawsuit against officers whom they accuse of stealing $225,000 in rare coins while executing a search warrant.

Any police officer in the nine states that make up the U.S. Court of Appeals for the 9th Circuit “is therefore free to pilfer property listed in a warrant at will and successfully claim immunity if haled into court,” the two residents said in a Supreme Court petition.

[McCarthy offers Republican-backed policing overhauls in response to George Floyd’s killing]

‘Shot across the bow’

Three paragraphs in the House Democrats’ bill released Monday would wipe out two legal defenses from lawsuits that members of Congress say has made it nearly impossible to hold police accountable through the courts because of qualified immunity.

First, officers couldn’t escape a lawsuit because they were acting in good faith or reasonably believed their conduct was lawful. And second, officers couldn’t argue that the constitutional rights or laws were not “clearly established” at the time of the misconduct, which is the version of qualified immunity in play since a 1982 decision.

In the California case on the stolen coins, the 9th Circuit had ruled there was no case directly on the issue, so it was not “clearly established” that officers “violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant.”

The House bill removes the defenses for a “local law enforcement officer” or a “State correctional officer.”

Arthur Rizer, the director of the criminal justice and civil liberties program at the nonprofit research center R Street, said the three paragraphs in the House bill would “fix a whole hell of a lot” of problems with qualified immunity.

“It would absolutely, fundamentally, turn it on its head,” Rizer said. “And I also think it’d be a clear shot across the bow at, if the Supreme Court did pick something up, they would be on notice of what the congressional intent was.”

Police use of force, similar to the video recorded death of George Floyd at the knee of a police officer in Minneapolis that sparked nationwide protests, is the subject of many blocked lawsuits.

One of the cases the justices are now deciding whether to hear was filed by a man who wants to pursue a lawsuit against a police officer who unleashed a police dog on him after he had surrendered by sitting on the ground with his hands up.

The man’s lawyers say the lower court found that was not a “clearly established” violation of the Fourth Amendment, despite a previous case that found it a violation to unleash a dog on a suspect who had surrendered by lying on the ground.

David Gans, the civil rights director at the Constitutional Accountability Center that has filed briefs urging the Supreme Court to revisit its previous qualified immunity rulings, said there’s a possibility that the justices will act on the issue before Congress does.

“I think it’s important that Congress is saying, we know we need to fix this, we need to make sure that individuals who were victimized in the way that George Floyd and others have been can go to court and can get justice,” Gans said.

[Lawmakers eye NDAA to limit military gear transfers to police]

Behavioral patterns

The House bill also includes provisions that would make it easier for the Justice Department to prosecute civil rights violations and bolster the Justice Department’s ability to investigate local police departments across the nation for patterns of unconstitutional use of force or racially discriminatory behavior.

The Justice Department can turn such “pattern-or-practice” investigations into court-enforceable agreements to overhaul the agencies — but the use is still up to the discretion of the current administration.

A provision of the bill would give the Justice Department’s Civil Rights Division subpoena power during those probes. California Democratic Sen. Kamala Harris, a former state attorney general, said it would give “teeth” to the efforts.

The bill would also authorize a $100 million grant program for state attorneys general to conduct pattern-or-practice investigations, but it would still be up to the Justice Department to award the grants.

Civil rights groups say the agreements can fix systemic rights violations and reduce harm to communities of color. The Obama administration used the investigations in a civil rights push, but Trump’s first attorney general, former Alabama Republican Sen. Jeff Sessions, all but shut them down as one of his final acts before his forced resignation in November.

Attorney General William Barr has continued that policy, and he told CBS News on Sunday that opening a pattern-or-practice investigation into Minneapolis after Floyd’s death is “exactly the reaction that I think has been a problem in the past.”

“Just reacting to this incident by immediately putting the department under investigation doesn’t necessarily result in improving the situation,” Barr said, noting state officials are looking into the department. “We stand ready to act if we think it’s necessary. But I don’t think necessarily starting a pattern-or-practice investigation at this stage is warranted.”

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