David M. Rubin
For The Self-Proclaimed Bi-Partisan Senator Scott, It's Showtime
Senator Tim Scott is being promoted by Republican leaders as the kinder, gentler, bi-partisan face of his angry, fractured, and delusional party.
It is a role he played with relish in responding to President Joe Biden’s address to a joint session of Congress. Undoubtedly Scott will attempt to use this image as bi-partisan conciliator when he runs for re-election next year.
Right now, the rubber of his fantasy meets the reality of the road in the knotty issue of police reform.
Scott responded in 2020 to the outrage over the police murder of George Floyd with his “Justice Act.” Democrats found it far too weak and unlikely to achieve the goal of changing the culture of policing in the United States. It went nowhere in Congress.
Now Scott is trying to hammer out a compromise. If he can pull it off, it will be the greatest achievement of his modest legislative career. He says he has established common ground with Democrats and that a solution is close. But is it?
Scott’s Justice Act plucked the low-hanging fruit from the police reform tree. His bill mandates, among other uncontroversial proposals, gathering data on the social status of Black men and boys. It launches a comprehensive review of the criminal justice system. It studies best practices in policing and disseminates de-escalation techniques. It provides funds for training.
But his bill doesn’t ban chokeholds (which killed George Floyd) or no-knock warrants (which led to the death of Breonna Taylor). Democrats included both measures in their House bill. Scott prefers the easier path of incentivizing police departments to adopt these practices by threatening to withhold small amounts of federal money if they don’t. Democrats think this approach is not up to the challenge.
Where Scott will really encounter bi-partisan trouble is in fixing the “qualified immunity” doctrine. This highly controversial judicial practice has immunized individual members of the police force and city governments from lawsuits brought by persons who believe the police have violated their constitutional rights.
Qualified immunity has made it close to impossible to pursue such suits, even against police officers who have committed the most egregious attacks on citizens. One example concerns an Alabama prisoner named Larry Hope, who was chained to a hitching post in the sun and permitted no bathroom breaks. Another is the cop who body-slammed a five-foot tall woman who was walking away from him. Qualified immunity doomed their suits for violation of their rights.
Doctors are not free to commit malpractice with immunity. Nor are lawyers. Individual doctors and lawyers can be sued, and they are. This helps keep them in line. But the misguided doctrine of qualified immunity gives police officers (and other public officials) a special protected status.
Since its 1982 decision in Harlow v. Fitzgerald, the Supreme Court has signaled its fear that without qualified immunity, police officers will be sued after every arrest they make. The court system will be clogged. Police officers will be afraid to do their jobs or, as Scott has suggested, they won’t go into dangerous areas of a city for fear of a lawsuit.
Democrats want to get rid of qualified immunity. Scott has called this a “poison pill” that for him (and other Republicans) would block a bi-partisan agreement. Poison pill or not, solving the qualified immunity problem is the heart of the matter, and Scott is a long way from a solution.
Scott seems not to understand that qualified immunity is classic “judge-made” law. It is not in the Constitution. There is no statute enshrining it. A series of wrong-headed Supreme Court decisions has created it. Justices as diverse in their thinking as Clarence Thomas and Sonia Sotomayor have written as much in arguing that qualified immunity needs another look. Republicans claim they hate “activist courts” and “judge-made” law. Yet Scott has not grasped this irony and used it to move strongly against qualified immunity. He ought to be blasting it as “legislating from the bench.”
Instead, Scott is floating a solution that while citizens should not be able to sue police officers, they can sue police departments and the cities that employ them. This will supposedly force the cities to exert more control over their police officers.
However, in 1978 the Supreme Court ruled that local governments are not liable either, unless the plaintiff can show that a police officer was acting under official “policy and custom” when he or she violated a citizen’s rights. Good luck convincing a court that it was the “official policy” of a city to authorize chokeholds or chain inmates to stakes.
If Scott really wants to solve this problem, it should not be difficult for him to come up with many compromises that could appeal to Democrats.
He could argue that all police officers must carry malpractice insurance, and if they can’t get it, they can’t practice policing.
He can argue that cities may not hire any police officer who has been found guilty of action violating a constitutional right. Related to this, he can require compilation of a national database, open to the public, naming all police officers who have been dismissed from their forces, and why. Then, when a jurisdiction hires a new police officer, everyone in the community can consult the database to determine if the city has hired a cop with a checkered past.
Scott can flatly outlaw chokeholds and no-knock warrants in his bill, and not just offer incentives to local police departments to adopt these policies.
Finally, Scott can swallow his “poison pill” and scrap qualified immunity and replace it with some other standard that gives citizens far greater leeway to sue bad cops.
Scott’s job is to figure this out and sell it to Democrats. If he can, he then has to sell it to at least nine of his fellow Republicans to reach sixty votes for passage. Given that Republicans in the last dozen years only seem to vote “yes” on tax cuts for the wealthy and conservative judicial nominees, this will be a herculean task for him.
But Scott is selling himself as the Great Compromiser, an heir to Henry Clay. Let’s see if he can pull it off, or if he really wants to try.
Blogger David M. Rubin is the former Dean of the Newhouse School of Public Communications at Syracuse University. He is a former columnist for the Syracuse Post-Standard and an expert on First Amendment law (speech and press). He lives in Summerville.