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The doctrine of qualified immunity has been used to protect police from civil lawsuits and trials. Here’s why it was put in place.

USA TODAY

WASHINGTON – As Congress wrestles with how to address policing reforms that hundreds of thousands of protesters across the nation are demanding, one issue has emerged as a potential hurdle with both sides appearing to dig in their heels. 

The Supreme Court on Monday refused to reconsider qualified immunity, the protection that shields police and other public officials from lawsuits if accused of misconduct. The issue has been one of the key changes sought by Democrats and one of the few that Republicans have dubbed a non-starter. The has set up a battle on Capitol Hill as protests continue across the nation after the death of George Floyd, an unarmed black man who died after a Minneapolis police officer knelt on his neck for nearly nine minutes.

Senate Republicans are planning to introduce a bill on Wednesday to address policing and racial tensions that have boiled over in some cities, while the House is planning to move forward with examining its own legislative response. The chambers will have to find a middle ground and garner the approval of President Donald Trump before any changes become law. 

“What we need to do is find a path forward. I don’t know that we’ve found that path forward yet,” Sen. Tim Scott, R-S.C., who has led the legislative response from congressional Republicans, told reporters Monday. “Without the bill becoming law, whether it’s my bill or some version of some other bill, then we’ve kind of failed the moment. And I think we should all be interested in getting every aspect of the legislation that we can across the finish line.”

In emotional testimony last week, Philonise Floyd, brother of George Floyd, pleaded with lawmakers to reform policing laws and make sure his brother did not die “in vain.”

More: Supreme Court won’t consider limiting police immunity from civil lawsuits

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Supreme Court amps up qualified immunity issue

The Supreme Court’s refusal to take up qualified immunity has only heightened the stakes for Democrats, who argue this makes it a necessity for Congress to act on this and allow possible victims of police brutality to have their day in court. 

“The Supreme Court’s failure to reconsider this flawed legal rule makes it all the more important for Congress to act,” read a statement from House Judiciary Chairman Jerry Nadler, Congressional Black Caucus Chairwoman Karen Bass and Subcommittee on the Constitution, Civil Rights, and Civil Liberties Chair Steve Cohen. 

The trio of House Democrats said “it is long past time to remove this arbitrary and unlawful barrier and to ensure police are held accountable when they violate the constitutional rights of the people whom they are meant to serve.”

A host of Democrats agreed on Twitter Monday, along with activists and organizations who argue incremental police reform over the years has not been enough to change departments. 

“It is now time for Congress to stand up for the rule of law and abolish qualified immunity,” the American Civil Liberties Union wrote on Twitter. “We cannot wait any longer for justice.”

What is expected in the Senate policing bill 

Scott, who is leading GOP efforts in Congress on criminal justice legislation, has already rejected Democratic calls to end qualified immunity, calling it a “poison pill” for any bill seeking to become law. 

But the South Carolina Republican  – and lone black GOP member in the Senate – over the weekend outlined the broad ideas that would be included in the package he’s preparing to unveil on Wednesday. 

More: Sen. Tim Scott rejects key criminal justice proposals by Democrats, setting up Capitol Hill showdown on police conduct

He told CBS’ Face the Nation his bill has several main components: 

  • More data: Scott said he wants to make it mandatory for police departments across the country to offer data to the Justice Department when it comes to serious injuries and death. He noted less than half of departments currently provide data to the federal government. 
  • Training: Scott said he’s focused on increased training and tactics in hopes changes could deescalate situations before there are any deaths or injuries. 
  • Officer misconduct: Scott said both sides are interested in tackling officer misconduct and weeding out problematic officers. While he acknowledged qualified immunity is something that doesn’t pass muster with the president, he was interested in examining “decertification,” essentially banning officers from the profession
  • Chokeholds: Scott told reporters Monday on Capitol Hill that his bill will not ban chokeholds entirely but aim to “reduce funding for those agencies that do not have a ban against chokeholds.” 

The House’s bill, which was led by the Congressional Black Caucus, not only would end qualified immunity, but also aims to bolster police accountability and end the practice of aggressive officers moving from one department to another by creating a national registry to track those with checkered records. That bill will be moving through the House Judiciary Committee on Wednesday. 

More: Democrats unveil sweeping police reform bill, honor George Floyd with 8 minutes, 46 seconds of silence

It also would end certain police practices, such as the use of no-knock warrants and chokeholds, which were factors in the recent deaths of Black people during police action. 

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Nancy Pelosi named George Floyd, Breonna Taylor, Ahmaud Arbery and more before kneeling for a moment of silence that lasted 8 minutes and 46 seconds.

USA TODAY

Contributing: Ledge King and William Cummings 

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