The Glaring Hole in the Democrats’ Police Reform Bill – The New Republic

Cops, along with other state and local officials who violate a persons constitutional rights, can already be sued in federal court under Section 1983, a major provision of the Civil Rights Act of 1871. Over the past half-century, however, the Supreme Court has crafted a doctrine known as qualified immunity, which shields officials from liability unless they violated clearly established law. The Justice in Policing Act would abolish this controversial rule by explicitly stating in federal law that it cant be invoked as a defense. A related provision would make it easier for federal prosecutors to bring civil rights charges under Section 242, the criminal equivalent of Section 1983.

Naturally, there are practical and constitutional limits to the power of Congress to reform local police departments. Many of the bills provisions, including bans on chokeholds, racial profiling, and no-knock warrants in drug cases, would apply directly to federal law enforcement officials. But those and others, including body-camera reforms and racial-bias training, cant be imposed by Congress on state and local police through federal law. Instead, Congress would try to compel departments to make those reforms by withholding Justice Department grants if they dont comply. The law would also make lynching a federal crime for the first time, after 120 years of failed legislative efforts.

But while federal law enforcement officials would be covered on some of the proposed laws most sweeping changes, the bill avoids taking steps that would address several problems that are unique to the federal sphere. For instance, though the bill would strengthen Section 1983 by scrapping qualified immunity, that provision only allows civil rights lawsuits in federal court against state and local officials. There is no general statutory equivalent for civil rights violations committed by federal officials. The nearest comparable option is whats known as a Bivens lawsuit, which draws its name from the 1971 Supreme Court case Bivens v. Six Unknown Named Agents.

In Bivens, the court sided with a plaintiff who accused federal narcotics agents of conducting an unconstitutional search. The justices held that the lawsuit was allowed under the Fourth Amendment even if no federal law specifically permitted it. Here, too, the justices have steadily pared back what could be a formidable tool against civil rights abuses by federal officials. In the 2017 case Ziglar v. Abbasi, for example, the court rejected a Bivens lawsuit brought by a group of men of Middle Eastern and South Asian descent who were arrested and detained for months without sufficient cause in the aftermath of the September 11 attacks. The justices further held that they would not expand Bivens any further beyond the few circumstances where it had already been applied. Congress has not acted to fill that void.

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The Glaring Hole in the Democrats' Police Reform Bill - The New Republic

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