Calls to reform qualified immunity are coming from left and right. I'm still skeptical.

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In the wake of repeated police violations of individual civil rights and resulting large-scale protests in the summer of 2020, it has been widely suggested that the time is ripe to change, reduce or otherwise rid American law of the qualified immunity doctrine.

The doctrine states that government officials should be immune from civil rights lawsuits if their behavior complies with clearly established law. Such immunity has been criticized for shielding law enforcement officers from bearing responsibility for their actions. Scholars in numerous disciplines have called into question the doctrine's origins and efficacy.

We don't often see U.S. Supreme Court Justices Clarence Thomas and Sonia Sotomayor agree on jurisprudence, yet both have suggested that the court needs to revisit its thinking on qualified immunity.

Bipartisan support for reform

Likewise, we don't often see liberal interest groups like the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund argue for the same legal change as conservative interest groups like the Alliance Defending Freedom and the Second Amendment Foundation.

All of those groups have filed friend-of-the-court briefs in various federal court cases in recent years arguing that the qualified immunity defense has to be eradicated or fundamentally changed.

While there seems to be a groundswell of support for removing qualified immunity as a defense to holding police officers accountable, I would suggest the path to change or eradication may encounter a few roadblocks.

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First, the qualified immunity doctrine was largely made by judges, so it would require persuading a majority of the Supreme Court ​​​​​to overturn at least five precedent-setting cases decided with votes of 8-1 or greater.

Yes, it is noteworthy that ideologically different Justices Sotomayor and Thomas agree the court should revisit this doctrine, but whether they can persuade their colleagues is a different matter. The Supreme Court upholds precedent at a very high rate.

A second reason to be realistic about the chances of qualified immunity being reformed is this nagging question: Which branch of government should do it? If it would be difficult to persuade the Supreme Court to overturn its precedents, supporters could always lobby Congress. Qualified immunity is not written into the Constitution. Remember, the qualified immunity doctrine arose as a response to what is now called Section 1983 of the 1871 Civil Rights Act.

Congress could amend Section 1983 to explicitly ban qualified immunity or severely limit its scope. Would achieving this change be likely in the current hyperpartisan and polarized Congress? I have my doubts, but proponents for change do have a choice.

Third, while police officer actions are the focus of much attention today, the federal judiciary has applied qualified immunity to all unelected government officials.

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This is the other problem with attempts to change or terminate the doctrine. As Justin Driver wrote for Education Next, ending qualified immunity could be cause for alarm for public school officials and teachers, whose jobs also have wide discretionary authority affecting the lives of millions of schoolchildren, is more complicated than when the doctrine is applied to policing.

​​​​​​Think of all the street-level bureaucrats with discretionary authority who might be impacted by the elimination of qualified immunity – teachers, social workers, public defenders, etc.

Qualified immunity 'balances two important interests'

I suspect government labor unions, beyond those who collectively bargain for police officers and school teachers, will also be interested in what happens to qualified immunity. What advocates for ending or changing the doctrine have to keep in mind is, even if it has been used to protect despicable police officer behavior, it reflects the classic balancing act found in public law.

As Justice Samuel Alito said, “Qualified immunity balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

John M. Aughenbaugh, Ph.D., is an associate professor of political science at Virginia Commonwealth University.
John M. Aughenbaugh, Ph.D., is an associate professor of political science at Virginia Commonwealth University.

The balancing that Alito references is part and parcel of the modern administrative state in this country. Legislatures at all levels of government have delegated much discretionary authority to unelected bureaucrats – cops, teachers and the like – and ask them to use that delegated authority wisely. Yet, such delegation sparks the question, how do we hold them accountable when they do not act wisely? And if qualified immunity is removed for these government officials, I suspect there might be significant pushback from those who have long exercised this authority.

For advocates of ending qualified immunity, the concerns of these other government officials beyond law enforcement are something they should also be prepared to address. It might explain why, notwithstanding the groundswell to reform qualified immunity, such efforts will more than likely bear little fruit.

John M. Aughenbaugh, Ph.D., is an associate professor of political science at Virginia Commonwealth University.

This column is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. Stand Together does not provide editorial input.

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This article originally appeared on USA TODAY: Qualified immunity: Roadblocks lie ahead on path to reform