The Washington PostDemocracy Dies in Darkness

Opinion D.C. trails Maryland and Virginia in civil rights efforts

Inside the John A. Wilson Building, which houses the mayor's office and the chambers of the D.C. Council. (Katherine Frey/The Washington Post)
4 min

Chad Reese is the assistant direct of activism at the Institute for Justice, a nonprofit public interest law firm and advocacy organization.

Since state legislative sessions kicked off, bills to end qualified immunity have been introduced in Virginia and Maryland. But one regional player remains conspicuously absent from these efforts to restore justice for victims of civil rights abuses: D.C.

Qualified immunity is a federal legal doctrine that protects government employees — even when they violate constitutional rights — from lawsuits, whether it’s a school official strip-searching a student or police officers stealing cash and rare coins.

Just last year, there was hope that the D.C. Council might provide a work-around for the problem and give victims a path toward justice. During a committee hearing on the D.C. Police Reform Commission’s recommendations, multiple advocacy groups — including the American Civil Liberties Union, DC Justice Lab and the Institute for Justice — testified in favor of the commission’s recommendation to allow suits in local courts and shared model legislation they agreed would get the job done.

If citizens are not above the law, then government officials are not above the Constitution. But, because of qualified immunity, it is remarkably difficult to sue government officials when they violate your rights. Qualified immunity involves a judge-created two-part test: (1) A rights violation has to take place (2) that violation must be “clearly established” in case law. Realistically, that means you can have your day in court only if you can find another case with the exact same circumstances and where a judge ruled against the government. Because judges can throw out cases without even deciding if a rights violation occurred, this often ends up being an insurmountable barrier.

Unfortunately, there’s been no indication from the D.C. Council since the 2021 hearing that this issue is a priority, despite a new study from the Institute for Justice ranking D.C. as one of the worst jurisdictions in the country for victims of rights abuses.

D.C. — along with along with Delaware and four other states — received an F grade. That’s because, just like federal immunity doctrines such as qualified immunity, D.C.’s courts and local laws work to keep the courthouse doors shut tight against citizens suing to defend their rights.

It is almost impossible, for instance, to sue D.C. government employees for inflicting personal injury because of doctrines that are even more protective of officials than federal qualified immunity. Plus, D.C. lacks a local-level analogue to Section 1983, the federal civil rights statute.

The good news is that states are more than capable of creating pathways to justice, and D.C. just needs to catch up. New Mexico leads the nation in state-law redress thanks to the New Mexico Civil Rights Act. Enacted in 2021, that law lets victims sue the employer of any government worker who violates their state constitutional rights and specifically bans the use of “qualified” or “sovereign” immunities. The result? A guarantee that courts have to take rights violations in that state seriously — and an A-minus grade.

Why is D.C. lagging behind other states instead of leading on government accountability?

Some might point to crime rates, particularly carjackings, as evidence that now is not the time to consider police reform legislation.

But those following the qualified immunity debate know that “police accountability vs. crime reduction” is a false dichotomy. As Evan Douglas, a former patrol officer with the Metropolitan Police Department, wrote last August, “Ending qualified immunity is the best path forward for both law enforcement and the public; doing so will allow judges to hear the most grievous cases without endangering police officers.”

Those worried that ending qualified immunity will make policing more difficult need only look to the Supreme Court’s decision in Graham v. Connor, which clearly instructs courts to adopt the perspective “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” when examining an officer’s actions.

In other words, ending qualified immunity doesn’t mean government officials will be punished for good-faith, split-second mistakes. But it would help restore trust and accountability to government officials who rely on that trust to keep their communities safe.

At the end of the day, the D.C. Council has a clear choice: It can move forward and end qualified immunity, giving victims of civil rights abuses a path to justice, or it can continue to ignore the problem while residents pay the price with their constitutional rights.