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Athletes’ petition calls for Congress to end qualified immunity for police

Will Congress end qualified immunity for government officials? A group of athletes hopes so. (Lucas Jackson/Reuters)

More than 1,400 current and former professional athletes and coaches, including stars such as Tom Brady, Drew Brees, Steve Kerr, Gregg Popovich, Dak Prescott and CC Sabathia, signed a petition asking that Congress pass a recently introduced bill that would end the legal doctrine known as “qualified immunity,” which often prevents U.S. citizens from collecting damages over wrongdoing by government officials such as police officers, even if they have violated the Constitution.

The Civil Rights Act of 1871 established the right of U.S. citizens to collect damages from government officials who violated their constitutional rights, but that act has been watered down by Supreme Court decisions that introduced the doctrine of qualified immunity, which shields government officials from civil lawsuits as long as they did not violate “clearly established” law. Critics say such a standard is nearly impossible to meet.

“According to the Supreme Court, the law is ‘clearly established’ only when a prior court has held that an officer violated the Constitution under virtually identical circumstances,” UCLA law professor Joanna Schwartz wrote in The Washington Post last week. That means that plaintiffs must find instances in which other government officials have violated someone’s constitutional rights “in precisely the same way,” Schwartz added, an often impossible degree of specificity.

The bill, introduced last week by U.S. Reps. Justin Amash (L-Mich.) and Ayanna Pressley (D-Mass.) in the wake of protests that followed the death of George Floyd during a confrontation with Minneapolis police, would amend the 1871 statute to prohibit qualified immunity as a defense by government officials.

“Qualified immunity has shielded some of the worst law enforcement officials in America,” the Players Coalition, a nonprofit group devoted to social justice co-founded by NFL safety Malcolm Jenkins and former wide receiver Anquan Boldin, wrote in its petition. “The 8th Circuit applied it to an officer who wrapped a woman in a bear hug, slammed her to the ground, and broke her collarbone as she walked away from him. The 9th Circuit applied the doctrine to two officers who allegedly stole $225,000 while executing a search warrant. The Eleventh Circuit applied the doctrine to protect an officer who unintentionally shot a ten-year old while firing at the family dog (who, much like the child, posed no threat). The list of officers who suffered no consequences because of this doctrine could fill a law book.”

The Supreme Court is considering a number of cases on the subject on qualified immunity, though current justices have shown signs that they are uncomfortable with the doctrine. In a dissenting opinion presented in a 2015 ruling, Justice Sonia Sotomayor wrote that endorsing qualified immunity in essence means courts are sanctioning “a ‘shoot first, think later’ approach to policing.” Two years later, Justice Clarence Thomas noted his “growing concern with our qualified immunity jurisprudence” and said the matter should be decided by Congress, not the Supreme Court.

“A legal system that does not provide such a recourse is an illegitimate one,” the Players Coalition wrote. “In their grief, people have taken to the streets because for too long, their government has failed to protect them. The Courts and elected officials alike have instead shielded people who caused unspeakable harm. Congress must not be complicit in these injustices, and it should take this important step to show that law enforcement abuse will not be tolerated.”