[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]




 
  EXAMINING CIVIL RIGHTS LITIGATION REFORM, PART 1: QUALIFIED IMMUNITY

=======================================================================

                                HEARING

                               BEFORE THE

  SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                        THURSDAY, MARCH 31, 2022

                               __________

                           Serial No. 117-61

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
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               Available via: http://judiciary.house.gov
               
               
               
                          ______

             U.S. GOVERNMENT PUBLISHING OFFICE 
                     WASHINGTON : 2022               
48-302               
               
               
               
                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREG STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

          AMY RUTKIN, Majority Staff Director & Chief of Staff
              CHRISTOPHER HIXON, Minority Staff Director 
                                 ------                                

            SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
                          AND CIVIL LIBERTIES

                     STEVE COHEN, Tennessee, Chair
                DEBORAH ROSS, North Carolina, Vice-Chair

JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana, Ranking 
HENRY C. ``HANK'' JOHNSON, Jr.,          Member
    Georgia                          TOM McCLINTOCK, California
SYLVIA R. GARCIA, Texas              CHIP ROY, Texas
CORI BUSH, Missouri                  MICHELLE FISCHBACH, Minnesota
SHEILA JACKSON LEE, Texas            BURGESS OWENS, Utah

                       JAMES PARK, Chief Counsel
                       
                            C O N T E N T S

                              ----------                              

                        Thursday, March 31, 2022

                                                                   Page

                           OPENING STATEMENTS

The Honorable Steve Cohen, Chair of the Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties from the State 
  of Tennessee...................................................     2
The Honorable Mike Johnson, Ranking Member of the Subcommittee on 
  the Constitution, Civil Rights, and Civil Liberties from the 
  State of Louisiana.............................................     4
The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York...........................     5

                               WITNESSES

The Honorable Jon O. Newman, Senior Circuit Judge, United States 
  Court of Appeals for the Second Circuit
  Oral Testimony.................................................     8
  Prepared Testimony.............................................    10
Mr. Alexander A. Reinert, Max Freund Professor of Litigation and 
  Advocacy; Director, Center for Rights and Justice; Benjamin N. 
  Cardozo School of Law
  Oral Testimony.................................................    19
  Prepared Testimony.............................................    22
Ms. Tiffany R. Wright, Affiliated Faculty, Thurgood Marshall 
  Civil Rights Center, Howard University
  Oral Testimony.................................................    32
  Prepared Testimony.............................................    34
Mr. Rafael A. Mangual, Senior Fellow and Head of Research, 
  Policing and Public Safety Initiative; Contributing Editor, 
  City Journal; Manhattan Institute
  Oral Testimony.................................................    38
  Prepared Testimony.............................................    41
Mr. Jay Schweikert, Research Fellow, Project on Criminal Justice, 
  Cato Institute
  Oral Testimony.................................................    47
  Prepared Testimony.............................................    50
Mr. Arthur Ago, Director, Criminal Justice Project, Lawyers' 
  Committee for Civil Rights Under Law
  Oral Testimony.................................................    60
  Prepared Testimony.............................................    62
Mr. Frederick L. Thomas, National President, National 
  Organization of Black Law Enforcement Executives
  Oral Testimony.................................................    82
  Prepared Testimony.............................................    84
Mr. William J. Johnson, Executive Director and General Counsel, 
  National Association of Police Organizations
  Oral Testimony.................................................    91
  Prepared Testimony.............................................    94

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Materials submitted by the Honorable Steve Cohen, Chair of the 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties from the State of Tennessee, for the record
  A statement from the Constitutional Accountability Center (CAC)   102
  A statement from the Major Cities Chiefs Association...........   110
A statement from Greg Champagne, Sheriff, St. Charles Parish, 
  Louisiana; Past President and Chair, Legal Affairs Committee, 
  National Sheriffs' Association, submitted by the Honorable Mike 
  Johnson, Ranking Member of the Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties from the State 
  of Tennessee, for the record...................................   118
Materials submitted by the Honorable Sheila Jackson Lee, a Member 
  of the Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties from the State of Texas, for the record
  An article entitled, ``1,065 people have been shot and killed 
    by police in the past year,'' The Washington Post............   144
  An article entitled, ``Full list of Black people killed by 
    police in 2021,'' Newsweek...................................   153
A document entitled, ``Cities that have Defunded the Police,'' 
  Committee on the Judiciary Republicans, submitted by the 
  Honorable Mike Johnson, Ranking Member of the Subcommittee on 
  the Constitution, Civil Rights, and Civil Liberties from the 
  State of Louisiana, for the record.............................   164

                                APPENDIX

A document entitled, ``Qualified Immunity Fact Sheet,'' NAACP 
  Legal Defense and Educational Fund, submitted by the Honorable 
  Steve Cohen, Chair of the Subcommittee on the Constitution, 
  Civil Rights, and Civil Liberties from the State of Tennessee, 
  for the record.................................................   168


  EXAMINING CIVIL RIGHTS LITIGATION REFORM, PART 1: QUALIFIED IMMUNITY

                              ----------                              


                        Thursday, March 31, 2022

                     U.S. House of Representatives

            Subcommittee on the Constitution, Civil Rights,

                          and Civil Liberties

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to call, at 10:04 a.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve Cohen 
[Chair of the Subcommittee] presiding.
    Members present: Representatives Nadler, Cohen, Raskin, 
Ross, Johnson of Georgia, Garcia, Bush, Jackson Lee, Jordan, 
Johnson of Louisiana, McClintock, Roy, Fischbach, and Owens.
    Staff present: John Doty, Senior Advisor and Deputy Staff 
Director; David Greengrass, Senior Counsel; Moh Sharma, 
Director of Member Services and Outreach & Policy Advisor; 
Jordan Dashow, Professional Staff Member; Cierra Fontenot, 
Chief Clerk; Gabriel Barnett, Staff Assistant; Merrick Nelson, 
Digital Director; James Park, Chief Counsel for Constitution; 
Agbeko Petty, Counsel for Constitution; Will Emmons, 
Professional Staff Member/Legislative Aide for Constitution; 
Keenan Keller, Chief Counsel for Crime; Ella Yates, Minority 
Member Services Director; Betsy Ferguson, Minority Senior 
Counsel; Caroline Nabity, Minority Senior Counsel; James 
Lesinski, Minority Senior Counsel; and Kiley Bidelman, Minority 
Clerk.
    Mr. Cohen. Good morning. The Committee of the Judiciary 
Subcommittee on the Constitution, Civil Rights, and Civil 
Liberties will come to order. Without objection, the Chair is 
authorized to declare a recess of the Subcommittee at any time 
or do just about anything that I want with the exception of the 
Ranking Member making me think about it.
    I welcome everyone to today's hearing on Examining Civil 
Rights Litigation Reform, Part 1: Qualified Immunity. Before we 
continue, I would like to remind Members we have established an 
email address distribution list dedicated to Members for 
circulating exhibits, motions, or other written materials 
Members might want to offer to the hearing. If you would like 
to submit those, you know how to do it.
    All Members and Witnesses, both those in person and those 
appearing remotely, we would ask you to mute your microphones 
when you are not speaking. This will help prevent feedback and 
other technical issues. You may unmute yourself when you seek 
recognition.
    I will now recognize myself for an opening statement. 
Today's hearing is the first in a series of hearings that this 
Subcommittee will hold to examine potential reforms to Federal 
civil rights litigation. Future hearing topics may include 
examinations of proposals to impose vicarious liability on 
States and municipalities, respond-eat superior, and the 
possibility of replacing Bivens liability with the Federal 
statutory analog of 42.1983.
    We begin this series, however, by focusing on the entirely 
judicially created doctrine of qualified immunity. This 
doctrine shields defendants in constitutional tort cases from 
liability even when they have violated a person's 
constitutional rights if a court finds that a conduct, though 
unconstitutional, does not violate clearly established law. 
Clearly established law is created by the courts and the courts 
can do that although my Senator says if it is not written in 
the Constitution, it must not be a right and something we have 
to pay attention to. My Senator is not on the Supreme Court.
    My hope is that this hearing will serve as an educational 
function, teaching Members and the general public about what 
the law actually is in qualified immunity in the face of much 
disinfor-mation about this doctrine, also if we use this 
hearing to consider reasonable critiques of the doctrine, as 
well as potential responses by Congress, because we can amend 
it.
    To fully appreciate the implications of qualified immunity 
doctrine in civil rights cases, generally, at least misconduct 
cases, in particular, which is where we hear most about it, 
that makes up a significant portion of the cases in the Federal 
courts, it is important to step back and understand the genesis 
of the central idea underlying the statutes at issue in 
42.1983.
    Section 1983 provides a Federal cause of action for a 
person to seek monetary relief from State or local officials 
who acting under the color of State law violate that person's 
constitutional or other Federal right. Congress passed the 
measure as part of the Ku Klux Klan Act of 1871, three years 
after the 14th Amendment's ratification, and six years after 
the South laid down its guns and said olly olly oxen free, we 
are finished.
    It did so out of concern and notwithstanding the 14th 
Amendment's guarantee of equal protection laws for all 
Americans, State and local government officials including 
police officers at the time, not only acquiesced then, but 
participated and perpetrated racial violence and other forms of 
racial discrimination against Black Americans. This conduct 
eventually continued under Jim Crow laws, less virulent, but 
just as present in other forms.
    By providing a cause of action, Congress intended for 
victims to receive some measure of justice for the violation of 
Federal rights by State and local government officers. As the 
Constitution Accountability Center noted in its written 
submission to the Subcommittee, Congress also intended for 
private litigation to be a means of deterring constitutional 
violations by imposing financial liability on the offenders, 
sanctions so to speak. The qualified immunity defense as 
applied over the last several decades, subverts Congress' 
intent at passing section 1983 by effectively making it 
impossible in all but a handful of cases for victims of 
constitutional or civil rights violations to obtain a remedy or 
even just have their day in court. This is so because courts 
have persistently narrowed the scope of the clearly established 
standards over the course of decades. In effect, to defeat a 
qualified immunity defense, a civil rights plaintiff would have 
to show that there was precedent existing at the time of the 
alleged civil rights violation that was precedent, that was 
almost identical, identical to the plaintiff's case, not only 
legally, but factually, through an eye of a needle. This can 
have terrible consequences from legal policy and moral 
perspectives. More importantly, victims are left with no remedy 
or even the chance to develop the facts in their cases and face 
a dismissal of their lawsuits based on qualified immunity, the 
defense that can be raised at any stage of litigation.
    In addition, egregious misconduct that could amount to 
unconstitutional actions by police or other officials can go 
unpunished and undeterred in the future. This threatens to 
undermine the remedial and deterrent purposes of 1983.
    Also, by allowing courts to avoid merits decisions on 
whether particular challenged conduct is unconstitutional, 
allowing them instead to simply answer the question of whether 
the defendant's conduct violated clearly established law of the 
qualified immunity doctrine, stymies the development of case 
law interpreting and defining the contours of constitutional 
law. This does a disservice to police officers, other 
government officials, and all other citizens.
    These consequences are particularly tragic when weighed 
against the minimal benefits of qualified immunity in the 
policing context. For example, other areas of substantive and 
procedural law already account for good faith conduct by 
officers acting under exigent circumstances, but the harm seems 
to outweigh the good when it comes to qualified immunity in 
police misconduct cases.
    In light of the forgoing, I hope we will hear thoughtful 
solutions to the problems with qualified immunity doctrine. The 
solutions could range from full elimination of qualified 
immunity in section 1983 cases or more targeted curtailment of 
the defense and other potential measures.
    Both last Congress and this Congress, I joined Full 
Committee Chair Nadler, Representative Bass, and other 
colleagues in cosponsoring the George Floyd Justice in Policing 
Act. It certainly seems like an oxymoron, doesn't it? George 
Floyd Justice in Policing Act which among other things would 
have eliminated qualified immunity for law enforcement 
officers.
    Last Congress, I also introduced H.R. 1489, the Civil 
Rights Enhancement Law Enforcement Accountability Act of 2021. 
This legislation will make the employers of any law enforcement 
officer vicariously liable under 1983 for the officer's 
violations of a person's rights, while also preserving 
individual officer's liability.
    To be clear, I do not intend this proposal to be 
alternative to address qualified immunity, but rather to be a 
complement in doing so, although it could be an alternative 
because it still would have the ability of the government if 
they are liable for the damages, they will make sure that the 
officers are taught, taught, and taught, and reinforced to do 
the right thing and what the right thing is.
    I am a proponent and knowledgeable in government and 
society over the years of police and law enforcement enforcing 
and continuing to be a positive force and an underpinning of 
the rule of law which is what makes our country so great, and 
society has to have rules of law to continue and to prosper and 
protect its citizens. So, we want to, as the President's budget 
will, fund the police. We don't want police to be used as 
pinatas in courts, but we do want police to do the right thing. 
If they don't do the right thing, there needs to be a source 
of--a remedial source to remind them of the right thing and to 
make sure it undermines. Respondeat superior could do as well.
    I thank our distinguished panel of experts for being here 
and I look forward to hearing their testimony which promises to 
be a substantive and meaningful debate on a topic of great 
national importance.
    I would now like to recognize the Ranking Member of the 
Subcommittee, the gentleman from Louisiana, Mr. Johnson, who 
will save me from doing anything beyond calling recesses, for 
his opening statement.
    Mr. Johnson of Louisiana. Thank you, Mr. Chair. I thank our 
witnesses for being here this morning and I also want to take 
just a moment to honor the great men and women in law 
enforcement and recognize the essential role they play in 
keeping our country safe. You have an ally in me and my 
colleagues, certainly on this side of the aisle.
    At this hearing, we are going to discuss policing in 
America and whether the doctrine of qualified immunity should 
remain intact. For anybody who is not aware, there are some 
people who watch these proceedings at home, qualified immunity 
is the doctrine that protects law enforcement officers from 
civil liability for honest mistakes they make, while serving in 
one of the most high-pressure jobs in the world.
    The vast majority of police officers in this country are 
self-sacrificing public servants. They put their lives at risk 
every single day when they put on that badge. I know this from 
my own experience. I grew up at the Fire and Police Training 
Academy in my hometown of Shreveport, Louisiana where my dad 
was a training officer and assistant chief before he was 
critically injured and permanently disabled in the line of 
duty.
    If we are going to ask our officers to potentially make the 
ultimate sacrifice for the safety of others, we have to provide 
them with legal protections that qualified immunity affords, 
period, full stop.
    However, despite the sacrificial service and bravery of law 
enforcement, there are some Democrats in Congress who continue 
to push the false and outrageous narrative that police are 
actually somehow to be regarded as the enemy. We all saw this 
over the last couple of years and as we all know, there are 
some on the progressive left, some elected Members of Congress, 
who have gone as far as to call for the full-scale abolition of 
police, if you can imagine that. It is insanity.
    My Republican colleagues and I are here to tell you that 
they are wrong, stating the obvious. We need police officers, 
and we must maintain law and order. Nothing makes this more 
apparent than the spike in violent crime and homicide that we 
have seen in Democrat-led cities that have defunded their 
police departments. In 2021, the homicide rate rose by five 
percent from the previous year. If you think that number is 
unacceptable, wait until you hear the next one. In 2020, the 
homicide rate rose by 29 percent over the previous year. Yet, 
even in the face of this madness, police officers wake up every 
single day. They kiss their loved ones goodbye and they show up 
for work.
    Meanwhile, the defund the police movement, the pandemic, 
and COVID vaccine mandates have gutted police recruitment and 
retention efforts across the country. I know many of you have 
experienced that. At a time when departments are struggling 
just to fill open positions and make our communities safer, we 
still have Democrats here determined to expose our officers to 
civil liability for simply doing their jobs.
    There are very real common-sense reforms that all of us 
acknowledge that we can make to policing in America. We have 
had thoughtful discussion about that. That is why I joined the 
large majority of my Republican colleagues in supporting the 
Justice Act this last Congress. The Democrats in charge made 
sure that that bill was dead on arrival. They squandered what 
we saw as a crucial opportunity to make positive change and 
build better relationships in our increasingly divided 
communities. This just shows the radical left calls for reform 
and nothing more than political talking points sadly.
    So, what should we be talking about today instead of 
eliminating qualified immunity, we should discuss ways that we 
can further support our police officers. We should encourage 
them to continue building stronger relationships with their 
communities. We should give law enforcement the tools and 
training they need to maintain law and order. Their role is 
critical. This is a critical part of the fabric of our nation 
and as we all know, that fabric is being frayed right now in 
unprecedented ways.
    We are the greatest nation in the history of the world and 
the only way that we will continue that, maintain that, is if 
we back the blue. It really is that simple to us. Qualified 
immunity is a big part of this.
    So, I look forward to the discussion day and hearing from 
our Witnesses. I know some of you have done some very important 
work in this arena and I yield back.
    Mr. Cohen. Thank you. Before I recognize Mr. Nadler, I am 
just going to take a little privilege to the Chair. I cringe, 
Mr. Johnson, when our Members talk about defunding the police. 
I was a police legal advisor. Worked in the police department 
in Memphis for three and a half years. My cringes are no 
different than your cringes when your Members suggest that 
Members of Congress, and particularly on your side the implied 
suggestion is, are engaged in sex orgies and cocaine doing. So, 
we got them on both sides.
    Mr. Nadler, you are recognized. You haven't been to any 
orgies lately, have you?
    Chair Nadler. Not lately. Thank you, Mr. Chair. Of course, 
we need the police and of course, we need the police to do 
their jobs and of course, we need the police to do their jobs 
legally. That is what we are here to talk about today.
    More than a century and a half ago, Congress passed one of 
the earliest civil rights laws in our nation's history, the Ku 
Klux Klan Act of 1871. Section 1 of that law now codified at 42 
U.S.C. 1983 empowers individuals to sue State and local 
government officials who violate their Federal rights under 
color of State law. This private right of action is a critical 
means of holding government officials accountable.
    To fully appreciate Congress' intent in passing the 
statute, we must understand the historical backdrop against 
which it created section 1983's right to sue. Section 1983 
originated from the unwillingness of State officials to protect 
and enforce the constitutional rights of African Americans 
after the Civil War. During this period, the Ku Klux Klan and 
its allies used racial violence and terror to undue the gains 
of Reconstruction. Under the cover of darkness and cloaked in 
hoods to conceal their identity, Klan members roamed the South 
with impunity, mutilating and murdering African Americans in 
bloody massacres. This barbarity often went unpunished, as 
former Confederate States did little to stop the violence. In 
fact, law enforcement frequently took part in the acts 
themselves.
    The complicity of these local governments left victims with 
no recourse, until Congress responded with section 1983. In 
drafting this statute, Congress sought accountability from 
State and local officials by arming victims of State-sponsored 
abuse with a Federal court remedy. Unfortunately, the 
accountability that Congress sought to achieve remains largely 
unrealized. This is in large part because of court decisions 
applying and expanding legal precedents for defendants through 
the doctrine of qualified immunity, which shields State and 
local officials from liability unless they violate ``clearly 
established'' law.
    Notably, the text of section 1983 says nothing about 
qualified immunity, nor is it written in the Constitution. The 
doctrine is purely a creation of the Supreme Court. As you will 
hear from some of our Witnesses today, this standard imposes a 
substantial obstacle to recovery for people whose civil rights 
have been violated.
    Since the Supreme Court first announced the current 
qualified immunity standard, it has found that a government 
official violated clearly established law in only three 
instances. This number says it all. This constitutional scholar 
and litigator, David Ganz, aptly stated, the Supreme Court 
``converted a statute designed to open the courthouse doors to 
those aggrieved by official abuse of power into a statute that 
both the courthouse doors firmly shut immunizing wrongdoers 
rather than holding them accountable.''
    Indeed, qualified immunity subverts the very purpose of 
section 1983 and denies justice to victims of State-sponsored 
abuse. We have seen how the doctrine absolved police officers 
of the most egregious conduct. We have Witnessed Black and 
Brown lives be devalued as certain officers Act with impunity. 
This is precisely why I joined Congresswoman Karen Bass in 
introducing the George Floyd Justice in Policing Act which 
would, among other things, eliminate the defense of qualified 
immunity for Federal, State, and local law enforcement 
officers.
    As Chief Justice John Marshall noted, ``We are a nation 
that has been emphatically termed a government of laws and not 
of men.'' He also warned, however, that ``It will certainly 
cease to deserve this high appellation if the laws furnish no 
remedy for the violation of a vested legal right.''
    If we are to heed this warning, State and local government 
officials who infringe on the constitutional rights of their 
citizens must be held accountable. The doctrine of qualified 
immunity currently stands in the way. It is imperative, 
therefore, that we address this issue so that all Americans can 
enjoy equal protection of the laws as Congress intended in 
1871.
    I want to welcome our Witnesses. I look forward to their 
testimony of this important topic and I yield back the balance 
of my time.
    Mr. Cohen. Thank you, Mr. Nadler. Mr. Jordan is not 
present, and I don't think he was going to give a statement, so 
we will proceed with our Witnesses. I thank each of you 
participating in today's hearing, both virtual and in person.
    I will introduce each Witness, and after the introduction 
will recognize him or her for their oral testimony. For those 
who are present here, there is a red light that says you are 
finished. A green light says you are on. Yellow light says you 
have got a minute. Get it together.
    Your statements that you have will be entered in the record 
in their entirety and you have five minutes. To help you stay 
within that time you have got your lights. For Witnesses 
testifying remotely, there is a timer in the Zoom view that 
should be visible somewhere in your screen. I think you have to 
do the character that allows you to see everybody and then you 
have got something up there on the right-hand side.
    Before proceeding with testimony, I remind all the 
Witnesses, that if you say anything that is not true, Mueller 
will push the buzzer and you will be subject possibly to 
penalties under law, section 1001, title 18.
    Our first Witness is the Honorable John Newman who is 
coming to us through the miracle of Zoom. Judge Newman serves 
on the United States Court of Appeals for the Second Circuit. 
He was appointed to the Second Circuit in 1979, served as its 
Chief Judge from 1993-1997, and assumed senior status in 1997.
    He previously was a District Court Judge for the District 
of Connecticut, the home of Rosa DeLauro and others. He was 
appointed to that position in 1971.
    From 1964-1969, Judge Newman served as United States 
Attorney for the District of Connecticut and I guess he is 
cheering for Connecticut in the basketball game, the women 
tomorrow night. I will be, too.
    Prior to that, he worked for Senator Abraham Ribicoff of 
Connecticut, a great United States Senator. He was his 
Administrative Assistant and he worked for Mr. Ribicoff at HEW 
where he was a secretary. Before that, he was Governor of 
Connecticut.
    Judge Newman served as a Senior Law Clerk to Chief Justice 
Earl Warren of the United States Supreme Court, was a Law Clerk 
of Judge George T. Washington, United States Court of Appeals 
for the District of Columbia. Served in the U.S. Army Reserve 
from 1954-1962. I presume he got to know Toby Moffett who was a 
Congressman back in the day from Connecticut.
    Judge Newman received his LLB from Yale Law School and his 
B.A. from Princeton University. Not shabby.
    Judge Newman, you are recognized for five minutes.

            STATEMENT OF THE HONORABLE JON O. NEWMAN

    Judge Newman. Thank you very much, Chair Nadler, Chair of 
the Subcommittee Cohen, Vice Chair Ross, and Ranking Member 
Johnson. I appreciate the Subcommittee's invitation to testify 
on a topic that has interested me ever since I started writing 
about it 44 years ago.
    As a District Judge, I became familiar with the topic, 
having conducted 30 police misconduct trials under section 
1983. As a matter of fact, I testified on this topic before 
this very Committee 30 years ago at the invitation of then-
Chair Don Edwards. I understand the topic today focuses 
primarily on qualified immunity.
    I have two suggestions to make to the Committee which 
perhaps anticipate what you are going to do with in the future, 
but with your permission, I will present them today because 
they have a distinct bearing and relationship to the qualified 
immunity issue.
    The two proposals are one, to establish employer liability 
for the constitutional violation by an employee. The second is 
to permit the United States to bring suit on behalf of a victim 
whenever there is a constitutional violation by a municipal 
employee.
    First, as to employer liability, cities today are liable 
for the torts on all their employees with one notable 
exception. For example, if the driver of a garbage truck 
injures a pedestrian, the city is liable. The city is the 
defendant. The city is liable and if there is a recovery, the 
city pays.
    Ironically, the only tort for which a city is not liable is 
the constitutional violation of a victim's rights. That seems 
to be a very odd set of circumstances. Now, I understand there 
is theMonell case which says a city can be liable, but as 
everyone understands who is familiar with it, that is a very 
limited doctrine. There has to be proof of a policy of 
promoting misconduct and plaintiffs hardly ever succeed in 
that.
    I also understand there is an indemnity in many cities, 
either by labor contract or by State law or by custom, but the 
indemnity is not a substitute for holding the city liable for 
this reason. In the first place, in the trials I ran, the city, 
there was indemnity if there ever was a recovery by the victim, 
the city paid it, but the jury didn't know that. The city was 
not a defendant in the courtroom. So, the jury was often 
reluctant to impose liability on a police officer, unaware that 
the city, in fact, would pay.
    Now, if you create employer liability, admissible 
liability, as we do for all other torts, it will have a 
profound effect on the conduct of police misconduct trials. 
Number one, you wouldn't even need qualified immunity because 
the victim would sue the city. There would be no point in suing 
the police officer. In fact, if you establish employer 
liability, you don't even need liability of the police officer. 
You could do it the way the Federal government does it, the 
Tort Claims Act. If you sue in court--if an employee of the 
Federal government commits a tort, the U.S. government comes in 
as the defendant. There is no suit against the employee at all. 
You could do the same with police officers.
    Let me turn quickly in my remaining time to letting the 
U.S. sue. Right now, the plaintiff is the victim. Often someone 
with one or two felony convictions. Not the most attractive 
plaintiff in the suit. You ought to consider letting the United 
States sue to remedy the misconduct by a police officer or any 
other public official. There is plenty of precedence of that. 
The United States can sue. The remedy violation of the voting 
rights, public accommodation rights, employment rights. There 
is no reason at all not to authorize the United States to come 
in and be the proponent of a lawsuit where the allegation is 
that the Constitution of the United States was violated.
    The 1983 remedy, if strengthened properly, should 
accomplish three purposes. It should deter misconduct. It 
should compensate the victim and it should through the voice of 
the jury condemn the misconduct by creating municipal liability 
and letting the U.S. sue, you can diffuse the whole controversy 
overqualified immunity. You can eliminate it if you wish. You 
can even eliminate the liability of the police officer and the 
net results would be a far stronger 1983 remedy of a violation 
of constitutional rights.
    I look forward to answering your questions at the 
appropriate time. Thank you.
    [The statement of Mr. Newman follows:]
    
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    Chair Nadler. Thank you, Judge Newman for your testimony 
and for your very distinguished service to our country.
    Our next Witness is Alexander Reinert. He is the Max Freund 
Professor of Litigation and Advocacy and Director of the Center 
of Rights and Justice at the Benjamin N. Cardozo School of Law, 
Yeshiva University. He teachers and conducts research in the 
areas of civil procedure, con law, criminal law, Federal 
courts, and the law of prisons and jails.
    He argued before the Supreme Court in Ashcroft v. Iqbal and 
has appeared on behalf of parties in amicus curiae and many 
significant civil rights cases.
    Prior to his academic career, he was in private practice of 
law focusing on the rights of people confined to prisons and 
jails, employment discrimination, and disability rights.
    He graduated magna cum laude from the NYU School of Law. 
After he graduated from law school, he served as law clerk for 
the Honorable Stephen Breyer, Associate Justice of the United 
States Supreme Court, and for the Honorable Harry T. Edwards of 
the United States Court of Appeals for the District of Columbia 
Circuit. He received his A.B. from Brown University.
    Professor Reinert, you are recognized for five minutes.

               STATEMENT OF ALEXANDER A. REINERT

    Mr. Reinert. Thank you so much, Chair Nadler, Subcommittee 
Chair Cohen, Vice Chair Ross, Ranking Member Johnson, and 
Members of the Subcommittee. My name is Alex Reinert. I am the 
Max Freund Professor of Litigation and Advocacy at the Benjamin 
N. Cardozo School of Law. This semester I am the Visiting 
Professor of Law at Cornell Law School. Thank you for inviting 
me to testify today regarding civil rights litigation reform 
and qualified immunity. Today I speak in my personal capacity 
alone, not for either of the institutions with which I am 
currently affiliated.
    As a law professor, I have researched, written, and taught 
about civil rights litigation and qualified immunity for many 
years. Over this time, I have been invited on multiple 
occasions to conduct workshops for Federal judges and their law 
clerks addressing civil rights litigation. As an attorney, I 
have litigated civil rights cases now for more than 20 years, 
arguing cases at every level of the Federal judicial system.
    My perspective on qualified immunity is informed by all 
this experience. My written testimony has already been 
submitted. So, with the time allotted to me, I intend to 
highlight some of what I cover in that statement, albeit in not 
as much detail. I will begin with a broad sketch of qualified 
immunity--we have heard some of it already--before we drill 
down to some specifics.
    So, what is it? It is a defense that government officials 
can raise when they are sued for damages for violating the 
Constitution. It protects them from liability, unless the law 
governing their conduct was clearly established. It applies in 
a wide range of contexts to conduct that all would agree is 
egregious in cases involving serious injury and even death. It 
can even apply, frankly, when the defendant intends to violate 
the Constitution.
    It's a judicially created immunity that stems from the 
Supreme Court's erroneous interpretation of 42 USC 1983. It is 
not in the statute or required by statute. To be clear, it is 
not required by the Constitution, and it is an anomaly. That is 
why, today, qualified immunity is being questioned on multiple 
grounds across the political spectrum. Indeed, probably one of 
the few things that brings Justice Clarence Thomas and Sonia 
Sotomayor together is their hostility to qualified immunity, 
albeit for different reasons.
    The requirement that there be clearly established law is 
the most significant part of the doctrine. As the Supreme Court 
has described it, this means that a plaintiff has to show that 
prior case law from either the Supreme Court or the Court of 
Appeals has to have made the unlawfulness of the officer's 
conduct so obvious that only an incompetent officer would not 
see it. Many lower courts have interpreted this to mean that a 
plaintiff has to show a prior case that found a constitutional 
violation for the same right and on nearly identical facts.
    I provided a few examples in my written testimony, as have 
other Witnesses at this hearing. They are just the tip of the 
iceberg. I expect some of the other panelists will discuss 
them, so I won't linger on them. What I think it is most 
important to take from them is that even if the officer 
violates the Constitution, they can obtain protection from 
qualified immunity simply because there was no prior case law 
finding a violation on exactly the same facts. Like Ranking 
Member Johnson, I think we should be a nation of laws. 
Qualified immunity interferes with enforcement of the highest 
law of the land, the Constitution. In so doing, it undermines 
fundamental rule of law principles.
    Now, there are many flaws in this doctrine. First, who is 
left without a remedy? Americans whose rights have been 
violated. Make no mistake, qualified immunity means that the 
people who have been killed or seriously injured bear all the 
costs of constitutional violations. That is both wrong and 
unnecessary.
    Of course, qualified immunity also makes it harder for the 
law to develop because courts routinely decide cases without 
ever addressing whether there is a constitutional violation in 
the first place. They just say it hasn't been clearly 
established, which means that clearly established law never 
develops for future cases.
    It also creates long delays in the civil justice system 
because of the right of defendants to immediately appeal and 
ping-pong a case back and forth between a trial court and 
appeals court before there is ever a trial.
    Of course, because we count on civil litigation to deter 
future constitutional violations, qualified immunity makes it 
more likely that officers and police departments will never 
learn from their mistakes. It blunts the power of civil 
litigation to incentivize systemic reform.
    Now, as Federal lawmakers are discussing ending qualified 
immunity and State legislators around the country have also 
debated legislation like this, you will no doubt hear 
objections from some law enforcement groups that this will make 
it harder to be an officer because qualified immunity protects 
them from individual liability. I want to say this loud and 
clear. That is the most pernicious fiction that exists in the 
debate around this doctrine.
    Law enforcement officers almost never pay judgments in 
civil rights cases. Municipalities and States already routinely 
indemnify officers, even for egregious misconduct. There is 
also insurance available for officers. The substantive 
constitutional law already provides ample protection against 
second-guessing.
    This is a doctrine that poses substantial barriers to 
relief. It prevents the enforcement of the highest land of our 
law. It leaves the cost of constitutional violations to be 
borne by the victims, an inexcusable consequence in a country 
that purports to be governed by the rule of law.
    Thank you for the opportunity to testify. I welcome your 
questions.
    [The statement of Mr. Reinert follows:]
    
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    Mr. Cohen. Thank you, sir.
    Our next Witness is live and in person, Ms. Tiffany Wright. 
She is an adjunct faculty member at Howard School of Law, 
supervising attorney of its Human and Civil Rights Clinic. She 
was one of the lead attorneys on Taylor v. Riojas, a 2020 case 
in which the U.S. Supreme Court without even requiring oral 
argument summarily reversed a grant of qualified immunity for 
prison guards who subjected an inmate to inhumane conditions. 
The Taylor decision is one of only a handful of times when the 
Court has reversed a grant of qualified immunity.
    Professor Wright received her J.D. magna cum laude from 
Georgetown Law Center where she was an editor of the Georgetown 
Law Journal and editor-in-chief of its Annual Review of 
Criminal Procedure. She served as law clerk to the Honorable 
Sonia Sotomayer, Associate Justice to the U.S. Supreme Court, 
and the Honorable David Tatel of the U.S. Court of Appeals for 
the District of Columbia Circuit, and the Honorable Royce 
Lamberth of the U.S. District Court in the District of 
Columbia.
    Professor Wright, you are recognized for five minutes.

                 STATEMENT OF TIFFANY R. WRIGHT

    Ms. Wright. Good morning, Chair Nadler, Chair Cohen, Vice 
Chair Ross, Ranking Member Johnson, and Members of the 
Subcommittee. My name is Tiffany Wright. I direct the Civil 
Rights Clinic at the Howard University School of Law.
    Two years ago, I represented a man named Trent Taylor. Mr. 
Taylor was incarcerated in a Texas prison when jail officials 
allege that he tried to take his own life. Mr. Taylor was 
transferred to a psychiatric prison facility ostensibly to 
receive mental health treatment. Instead, Mr. Taylor was 
stripped naked and placed in a cell covered in massive amount 
of feces. He could not eat for fear of contamination. He could 
not drink because even the water faucet was packed with feces.
    After four days, the guards moved Mr. Taylor to a second 
cell, which in addition to being filthy, it had no furniture 
and was very cold. So, Mr. Taylor was forced, due to a clogged 
drain in the middle of the floor, as he was still naked, to 
sleep in the human waste of other people. This was intentional. 
Guards ignored Mr. Taylor's pleas for help, wished him a long 
weekend, and said that they hoped he would freeze.
    The U.S. Court of Appeals for the Fifth Circuit granted 
qualified immunity to the guards. Although every Federal 
circuit, including the Fifth Circuit itself, has held that 
forced exposure to human waste violates the Constitution, the 
Fifth Circuit decided that because Mr. Taylor had only endured 
these conditions for just six days the prior precedent did not 
qualify as clearly established.
    Thankfully, the Supreme Court intervened. The Court held 
that this was an especially obvious case, that the 
constitutional violation was so clear that no reasonable 
officers could have thought otherwise. Taylor is extraordinary 
because it is just the third time in history that the Supreme 
Court has intervened to reverse a grant of qualified immunity. 
It has done the opposite in more than 30 cases. Taylor is not 
extraordinary because of its facts. The Supreme Court routinely 
refuses to Act in cases with facts just as abhorrent as Taylor. 
People like Mr. Taylor are the people that I routinely 
represent. In three ways, qualified immunity makes it 
impossible for them to get any measure of justice or 
accountability.
    First, many victims do not have the resources to obtain 
legal representation. I have met with many clients who tell of 
spending months and years to find a lawyer but are unable to do 
so because lawyers cannot risk the time it takes to litigate a 
case only to be shut down by qualified immunity.
    Second, qualified immunity impedes access to information, 
because when the defense is raised in the early stages of a 
case, there is no discovery, and so victims can't even ask 
questions. I have represented the families of people killed who 
can't get basic information like autopsy reports, scene 
photographs, or investigative reports.
    Finally, qualified immunity upends the normal legal 
process. Mr. Taylor suffered the inhumane treatment in 2013. It 
would be seven years before the Supreme Court intervened to 
deny the qualified immunity defense. For six and a half of 
those years, Mr. Taylor alone pro se fought the State of Texas, 
who defended the indefensible.
    All this means that the harm of qualified immunity falls on 
the victims. I have had the unfortunate task of sitting with 
victims who have suffered grievous losses and harms to tell 
them that there was no justice under the law for them.
    On the other side of the equation are police officers, who 
are almost always indemnified. When I appear with my clients, 
who are families suffering in the worst way, when I appear with 
them at settlement negotiations and court hearings, the people 
on the other side are not officers who are fearful of losing 
their livelihoods. They are insurance adjustors who are worried 
about an insurance loss, because even in the rare instances 
where qualified immunity fails, the cost is a matter of 
insurance loss not a matter of officers' loss of financial 
stability.
    Thank you for the opportunity to testify. I welcome any 
questions.
    [The statement of Ms. Wright follows:]
    
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    Mr. Cohen. Thank you, Ms. Wright.
    Our next Witness is Rafael Mangual. He is Senior Fellow and 
head of research for the Policing and Public Safety Initiative 
for the Manhattan Institute for Policy Research. He is also a 
contributing editor for City Journal. He has authored and co-
authored a number of Manhattan Institute reports and op-eds on 
issues ranging from urban crime and jail violence to broader 
matters of criminal and juvenile civil justice reform. In 2020, 
he was appointed to serve a four-year term as a member of the 
New York State Advisory Committee on the U.S. Commission on 
Civil Rights.
    He received his J.D. from DePaul University, where he was 
President of the Federalist Society and vice President of the 
Appellate Moot Court team. He received his B.A. from City 
University of New York's Baruch College.
    You are recognized for five minutes, sir.

                 STATEMENT OF RAFAEL A. MANGUAL

    Mr. Mangual. Thank you all so much for the honor and 
privilege to address this distinguished body on such an 
important issue.
    I would like to begin by noting that I am not entirely 
against the idea of reform when it comes to qualified immunity. 
At the end of my remarks, I will offer what I think is a 
middle-ground reform proposal that falls between outright 
abolition and the status quo.
    While reform is worth considering, some skepticism of the 
dominant narrative that has influenced both the discourse about 
qualified immunity and the proposals to address it is in order. 
That narrative is focused on the role that the defense has 
played in police litigation, particularly in suits related to 
uses of force. It posits that qualified immunity essentially 
functions as an unpierceable shield against liability for 
police officers, such that officers then internalize a sense of 
impunity that in turn leads them to misbehave in ways that they 
otherwise wouldn't if they had more financial skin in the game.
    As such, the abolition of qualified immunity is often held 
up as a way to significantly reduce excessive uses of force and 
other types of police misconduct. While this narrative has 
succeeded in influencing both public opinion and various reform 
efforts, it is wrong for three reasons.
    First, this narrative assumes without evidence that 
officers regularly and accurately assess their likelihood of 
successfully mounting a qualified immunity defense in light of 
the binding precedents in their respective jurisdictions when 
deciding whether, and if so how, to use force. A sizeable body 
of research has shown that in the context of situations 
involving the use of force, police officers overwhelmingly tend 
toward an intuitive decision-making process. The main reason 
for this tendency is that the encounters in which these 
decisions are generally made tend to be rapidly unfolding and 
volatile situations that simply don't lend themselves to the 
type of analysis that would go into an officer assessing his or 
her risk of personal liability based on the type and level of 
force used.
    The second reason that the standard story about qualified 
immunity doesn't hold water is that the available data seem to 
undermine the claim that the defense accounts for a significant 
share of police litigation outcomes. For example, the Legal Aid 
Society maintains a database of lawsuits filed against the New 
York City Police Department between January 2015 and June 2018. 
Now, if you filter those 2,400 cases by disposition, it 
produces just 74 cases result in favor of the police 
defendants. Even if all 74 were disposed of on qualified 
immunity grounds, we are still only talking about 3 percent of 
the cases in the database.
    I would also like to point the Subcommittee to an empirical 
assessment of qualified immunity published in a 2017 issue of 
the Yale Law Journal by UCLA law professor and noted qualified 
immunity abolitionist Joanna Schwartz, which found that less 
than four percent of the more than 1,100 cases analysed 
resulted in whole or partial grants of dismissal or summary 
judgment on qualified immunity grounds.
    As Professor Schwartz noted in the Wall Street Journal in 
response to this very argument less than two years, 
unsuccessful cases against police tend to fail because of other 
procedural and substantive infirmities, not qualified immunity. 
In that very same letter to the editor, Professor Schwartz went 
on to note that abolishing qualified immunity won't flood the 
courts with frivolous suits, which undermines any suggestion 
that the explanation for why qualified immunity does not 
account for a particularly large share of police litigation 
outcomes owes to some large number of cases that did not get 
filed in anticipation of being disposed upon immunity grounds.
    The third major flaw in the dominant narrative about 
qualified immunity is that abolishing the defense, as has been 
noted already, won't actually result in police officers having 
more financial skin in the game because it is not actually the 
true source of financial protection for officers. That is 
because when individual officers are successfully sued, which 
is relatively often, their employers indemnify them against 
liability, that is, they pick up the tab. A 2014 study found 
that governments already pay approximately 99.98 percent of the 
dollars that plaintiffs recovered in lawsuits alleging civil 
rights violations by law enforcement.
    Now, while the idea that qualified immunity reform will 
significantly reduce police uses of force is misguided, it is 
still worth considering ways to limit the number of cases in 
which constitutional harms go without redress. In 2001, in a 
case called Saucier v. Katz, the Supreme Court stated that 
qualified immunity analyses should first assess whether a right 
was violated before assessing whether the right was clearly 
established. Unfortunately, however, the Supreme Court reversed 
itself eight years later in Pearson v. Callahan, which gave 
judges the discretion to skip step one of this analysis.
    So, the short version of my middle-ground proposal is to 
consider legislatively reestablishing the Saucier sequence, 
because requiring courts to confront the constitutional or 
statutory questions before them in 1983 cases would both 
promote the development of the law in the civil rights arena, 
and it would more quickly shrink the scope of not yet 
established rights.
    Preventing courts from leaving these questions unanswered 
may not eliminate the potential for grants of immunity based on 
dubious factual distinctions from prior cases, but it will 
prevent situations in which multiple officers in the same 
jurisdictions get to avail themselves of qualified immunity in 
cases involving the same conduct over a period of time simply 
because courts have continually punted the same question.
    Another reason I think it is worth reconsidering the 
Saucier sequence is that it is often assumed that grants of 
immunity based on the clearly established prong of the analysis 
actually involve actual violations of constitutional or Federal 
civil rights. This is not obviously the case. Making it clear 
to the public that liability is denied because the conduct 
wasn't actually unconstitutional is an important end to pursue.
    I hope this statement contributes to a better understanding 
of the realities of this important debate. I look forward to 
addressing any questions raised by these points as best I can. 
Thank you.
    [The statement of Mr. Mangual follows:]
    
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       Our next Witness is Jay Schweikert, senior research fellow 
for the Project on Criminal Justice at the Cato Institute. His 
research and advocacy focus on accountability for prosecutors 
and law enforcement, including a specific focus on the doctrine 
of qualified immunity in most recent years. Before joining 
Cato, he spent four years doing civil and criminal litigation 
at Williams & Connolly.
    He earned his J.D. from Harvard Law School, where he was an 
articles editor for the Harvard Law Review and chaired the 
Harvard Federalist Society student colloquium program. 
Following law school, he clerked for the Honorable Diane Sykes 
of the U.S. Court of Appeals for the Seventh Circuit and 
Honorable Laurence Silberman, U.S. Court of Appeals for the 
District of Columbia. He holds a B.A. in political science and 
economics from Yale University. Having graduated from two Ivy 
schools, some would say he is not qualified for the Supreme 
Court. I would submit he is.
    You are now recognized for five minutes.

                  STATEMENT OF JAY SCHWEIKERT

    Mr. Schweikert. Thank you. Chair Cohen, Ranking Member 
Johnson, and Members of the Subcommittee, thank you for 
convening this hearing and giving me the opportunity to express 
my views on this crucial subject.
    For the last four years, I have been leading Cato's 
strategic campaign to challenge the doctrine of qualified 
immunity, which we see as the biggest impediment to meaningful 
accountability in the criminal justice system.
    Unfortunately, the national debate around qualified 
immunity has given rise to several persistent misconceptions 
about what the doctrine actually is and what eliminating or 
reforming it would actually entail. In my comments today, I 
would like to focus on three of those, in particular:

        (1)  The misconception that qualified immunity protects good 
        faith mistakes of judgment by the police,
        (2)  the misconception that qualified immunity protects against 
        frivolous lawsuits, and,
        (3)  the misconception that reforming qualified immunity would 
        damage the integrity or morale of the law enforcement 
        community.

    First, qualified immunity is not a good faith defense, and 
it is not necessary to protect the discretion of police 
officers to make difficult, on-the-spot decisions in the field. 
In other words, it does not protect honest mistakes. The 
doctrine of qualified immunity only matters when a public 
official has, in fact, violated someone's Federally protected 
rights. That means if a police officer has not committed any 
constitutional violation, then by definition they don't need 
qualified immunity to protect themselves because they haven't 
broken the law in the first place.
    The Supreme Court has made crystal clear that when police 
officers make good faith mistakes of judgment, such as 
arresting someone who turns out to be innocent or using force 
that turns out with the benefit of hindsight to have been 
unnecessary, they have not violated the Fourth Amendment at all 
so long as they acted reasonably. In other words, deference to 
reasonable, on-the-spot decisions by police officers is already 
baked into our substantive Fourth Amendment jurisprudence. The 
Fourth Amendment is what protects good faith decisions by 
police, not qualified immunity.
    The cases where qualified immunity ends up mattering aren't 
those where officers made reasonable mistakes of judgment. They 
are the cases where officers acted in bad faith but where a 
court simply had yet to address that exact scenario. We could 
do nothing but list examples of this all day, but I will just 
give two to flesh out what this means in practice.
    In a case called Jessop v. City of Fresno, the Ninth 
Circuit granted immunity to officers alleged to have stolen 
over $200,000 in cash and rare coins while executing a search 
warrant. In other words, they were alleged to have abused their 
authority for their own personal enrichment. Now, obviously, 
these officers were not acting in good faith, and no one 
contended that they were. They still received qualified 
immunity for the sole reason that the Ninth Circuit had yet to 
address that exact scenario.
    Similarly, in a case called Frasier v. Evans, the 10th 
Circuit granted immunity to officers who knowingly violated a 
man's First Amendment rights by harassing, threatening to 
arrest, and illegally searching him all because he recorded 
them in public. Now, these officers had been explicitly trained 
by their department that citizens do have a First Amendment 
right to record the police in public. So, far from acting in 
good faith, they had actual knowledge they were violating his 
rights. They received qualified immunity because the 10th 
Circuit, unlike six other circuits, had yet to address that 
exact question.
    Second, qualified immunity does not protect against 
frivolous civil rights claims. Again, the doctrine only matters 
where,

        (1)  a public official has violated someone's rights, but,
        (2)  a court holds that those rights were not clearly 
        established at the time of the violation.

    So, by definition, it only makes a difference where the 
underlying case is meritorious. If a civil rights suit is 
actually frivolous, in other words if it lacks legal or factual 
merit, then other tools of civil procedure are perfectly 
capable of dismissing those claims.
    This is, indeed, borne out by Professor Joanna Schwartz's 
2017 article, ``How Qualified Immunity Fails,'' where she found 
that only a minuscule fraction of section 1983 cases, 0.6 
percent, were dismissed prior to discovery on the basis of 
qualified immunity. In other words, notwithstanding qualified 
immunity's purported value in sparing defendants from having to 
litigate nonmeritorious cases, the doctrine almost never 
achieves this intended goal.
    Third, reforming qualified immunity would not hurt 
retention or morale in the law enforcement community. In fact, 
the exact opposite is true. Qualified immunity itself hurts the 
law enforcement community by depriving officers of the public 
trust and confidence that is necessary for them to do their 
jobs safely and effectively.
    Policing is dangerous, difficult work. Public perception of 
accountability is absolutely essential to police effectiveness. 
Yet, in the aftermath of many high-profile police killings, 
most obviously the murder of George Floyd, Gallup reported that 
trust in police officers had reached record lows and that for 
the first time ever less than half of Americans placed 
confidence in their police force. This drop in confidence was 
driven in large part by the perception that officers who commit 
misconduct are rarely held accountable. So, qualified immunity 
exacerbates what is already a crisis of confidence in law 
enforcement. Even if only a small proportion of officers 
routinely violate the law, if those officers are not held 
accountable, the community as a whole suffers a reputational 
loss.
    Thank you and I welcome your questions.
    [The statement of Mr. Schweikert follows:]
    
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    Mr. Cohen. Thank you, sir.
    Mr. Arthur Ago is Director of Criminal Justice Project at 
the Lawyers' Committee for Civil Rights Under Law. Before 
joining the Lawyers' Committee in November of 2019, he spent 
close to two decades at the Public Defender Service for the 
District of Columbia representing indigent children and adults 
facing serious delinquency and felony criminal charges in DC, 
ultimately serving as its Trial Chief. He has also been an 
Adjunct Professor at the Georgetown University Law Center, 
American University Washington College of Law, and the 
University of District of Columbia David A. Clarke School of 
Law.
    He received his J.D. from George Washington University Law 
School, his M.A. from the Asian American Studies, in Asian 
American Studies, excuse me, from the University of California 
at UCLA, and his B.A. from Amherst.
    You are recognized for five minutes.

                    STATEMENT OF ARTHUR AGO

    Mr. Ago. Thank you, sir. Good morning, Chair Cohen, Vice 
Chair Ross, Ranking Member Johnson, and Members of this 
Subcommittee. My name is Arthur Ago, and I am the Director of 
the Criminal Justice Project at the Lawyers' Committee for 
Civil Rights Under Law. Thank you for the opportunity to 
testify today about qualified immunity and how it both 
undermines civil rights and is a barrier to police 
accountability.
    The Lawyers' Committee has been a leader in the battle for 
equal rights since it was created in 1963 at the request of 
President Kennedy to enlist the private legal bar's leadership 
and resources in combating racial discrimination. Our Criminal 
Justice Project works to protect equal justice under the law by 
confronting the ways in which racism infects every stage of our 
criminal justice system, including advocating for and working 
toward increased police accountability.
    Approximately two years ago in the wake of the killings of 
George Floyd, Breonna Taylor, and far too many other people of 
color, tens of millions of Americans took to the streets to 
protest enduring police abuse and violence, particularly 
against communities of color, and to demand a fundamental 
transformation of policing. We commend the U.S. House of 
Representatives for twice passing the George Floyd Justice in 
Policing Act in response. Because the Justice in Policing Act 
has yet to be enacted, the country has not seen those 
transformative changes. Nevertheless, Congress has the 
opportunity today to take a critical step in achieving this 
necessary transformation by abolishing the doctrine of 
qualified immunity.
    In the simplest of terms, qualified immunity undermines 
civil rights in the United States. In the years following 
emancipation and the radification of the 13th, 14th, and 15th 
Amendments, Congress enacted the Civil Rights Act of 1871, 
which includes the well-known section 1983. The Act was the 
direct result of a congressional desire to secure to all 
citizens, including formerly enslaved people, the rights 
guaranteed to them by the Constitution. What the Act 
emphatically did not contain and what the Constitution 
emphatically does not contain and what this Congress has never 
legislated is a way to immunize those who violate others' civil 
rights under color of law.
    It was the Supreme Court of the United States, and not 
Congress, a century after 1871 that created the defense of 
qualified immunity. It is a defense that enables police 
officers to have an otherwise meritorious civil rights case 
dismissed even when no one disputes those officers' conduct. As 
you have heard from my fellow Witnesses, it is a defense that 
is fundamentally flawed because it creates too high a burden on 
victims of police abuse and misconduct, preventing these 
victims from having their day in court.
    I am certain that we will discuss the specific ways that 
the judge-made qualified immunity defense is flawed during the 
course of the hearing today. I would like to take a moment to 
emphasize the tragic effect that qualified immunity has had on 
people of color and in particular, Black people.
    Black Americans are three times more likely than White 
Americans to be killed by the police, and Latinos nearly twice 
as frequently as White people. Although Black people make up 
only about 13 percent of the U.S. population, Black Americans 
account for 26 percent of those killed by the police and about 
37 percent of those killed while unarmed. In all use-of-force 
cases, depending on how you define the different types of 
force, including those not resulting in death, Black people and 
Latinos experience police use of force 50 percent more often 
than White people and up to 3\1/2\ times more often depending 
on the type of force.
    Despite these devastating numbers, Americans, and 
especially people of color, are unable to hold police 
accountable through other avenues. Police do not effectively 
police themselves, nor can Americans rely on the criminal 
justice system for accountability. From 2005-2020, police 
across the country have fatally shot approximately 15,000 
people. Of those, 110 were charged and only 40 convicted.
    What remains for victims of police misconduct is 
accountability in civil court through civil lawsuits against 
police officers who commit misconduct. This is precisely what 
Congress envisioned in 1871. The Supreme Court has severely 
restricted this avenue of police accountability since it 
established qualified immunity.
    It is now time for Congress to Act and for this body to 
return the Civil Rights Act of 1871 to its original intent, 
which is to allow redress for people whose constitutional 
rights were violated by those, including law enforcement, 
acting under color of law, violations that continue to be 
endured disproportionately by Black people and other people of 
color. I urge you to seize this opportunity.
    Thank you for asking me to appear before you today to share 
the views of the Lawyers' Committee for Civil Rights Under Law. 
I look forward to your questions.
    [The statement of Mr. Ago follows:]
    
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    Mr. Cohen. Thank you for appearing before us. Thank you for 
your testimony.
    Our final Witness is Captain Frederick Thomas. Captain 
Thomas is President of the National--excuse me? Oh, I skipped 
Mr. Johnson. Well, no, I didn't skip Mr. Johnson. Our next to 
final Witness is Captain Frederick Thomas. Captain Thomas is 
President of the National Organization of Black Law Enforcement 
Executives, an organization of professional CEOs and officers 
in the field of law enforcement. He assumed NOBLE's presidency, 
NOBLE being the National Organization of Black Law Enforcement 
Executives, in August 2021 and has been in the organization for 
11 years. He is also a captain of the East Baton Rouge Parish 
Sheriff's Office and has over 30 years of experience as a law 
enforcement officer. He is also a military combat veteran.
    Captain Thomas received his bachelor's degree in criminal 
justice from Grambling State University in 1989 when Eddie 
Robinson was still there, I think. Later, in 2013, he earned a 
Master of Science degree in law enforcement and corrections 
from Southern University A&M. He is the recipient of numerous 
commendations and awards.
    Captain Thomas, you are recognized for five minutes as our 
penultimate Witness.

             STATEMENT OF CAPTAIN FREDERICK THOMAS

    Captain Thomas. Thank you. Good morning, Chair Jerrold 
Nadler; Ranking Member Congressman Jim Jordan; Subcommittee 
Chair Congressman Steve Cohen; Ranking Member Congressman Mike 
Johnson; and Committee Members. Thank you for the opportunity 
to provide a testimony regarding qualified immunity on the 
behalf of the National Organization of Black Law Enforcement 
Executives, otherwise known as NOBLE.
    My name is Frederick L. Thomas. I am also a captain with 
the East Baton Rouge Parish Sheriff's Office, which is located 
in Baton Rouge, Louisiana.
    I have been in law enforcement profession 30 years, and 26 
years in the Louisiana Army National Guard, from which I 
retired. I am a U.S. military combat veteran who served in 
support of Operation Iraqi Freedom.
    NOBLE members serve at every level of command, in Federal, 
State, and local law enforcement agencies. Fifty chapters 
across the nation. We represent thousands of individuals, 
including criminal justice practitioners. Our members are as 
diverse as the nation we protect and serve. Their views vary 
just as much.
    However, we all agree that qualified immunity needs to be 
revisited. NOBLE is honored to testify in hopes of addressing 
the unintended consequences and many misconceptions that keep 
us from police reform.
    The clearly established standards in the current documents 
set a high bar that favors law enforcement. Getting rid of 
qualified immunity altogether threatens public safety. Instead, 
NOBLE proposes strengthening trust and legitimacy between 
communities and law enforcement and making police more humane 
and effective.
    In my experience, the unresolved issues around police 
violence and the failure to create safeguards that addressed 
the present imbalance have had consequences on law enforcement 
agencies across the country.
    Recruitment and retention are at an all-time low. State and 
local government budgets are strained to their insurance 
limits. Officer performance and morale have been negatively 
impacted.
    NOBLE believes in doing the right thing for the public. We 
call for our professions to come together to provide reasonable 
recommendations to our legislators. The problem is 
misinformation. Our saving grace is unity.
    As public servants, we must share our expertise with 
transparency so you can make a real Federal policy change. 
NOBLE joins law enforcement organization nationwide to propose 
a system of claims of qualified immunity based on whether an 
officer conduct was objective and reasonable, or if there was a 
fair notice that the conduct violates a constitutional right.
    Fair notice allows plaintiffs to point to the related case 
laws to prove the conduct in question is unconstitutional. The 
objectively reasonable standard accounts for the situations 
where there are no previous case laws related to the conduct in 
question.
    These recommendations ease the burden of plaintiffs while 
ensuring law enforcement officers are still appropriately 
protected. They increase transparency and better ensure those 
who engage in gross misconduct are held accountable.
    NOBLE knows firsthand the history of civil rights in this 
country. We know it from the legislative experience, we know it 
from our law enforcement experiences, and most important, we 
know it from personal experience.
    This intimate knowledge lets us understand this is not a 
black-and-white issue. Real reform requires us to explore best 
practices, such as improving officer training and de-escalating 
tactics, crisis intervention, and deploying effective 
alternates to legal force.
    Embracing procedure with justice. Instituting more 
selective recruiting methods and standards. Re-imagining public 
safety without depending so much on the police.
    We lend our expertise as public servants to creating a 
nation that united balance and assure justice for all. We dare 
to re-imagine police based on dialog, examining--examination 
and allocation of resources. We believe that oversight will 
help us build trust and transparency in our neighborhoods, 
especially communities of color.
    This is a noble profession. Most police officers do their 
job every day with respect and commitment to the values and 
life of our democracy. NOBLE was founded in 1976 during a 
three-day symposium to discuss high crime rates in the Black 
urban communities. Today, this organization represents over 
3,400 members who serve all communities and all Americans.
    In closing, NOBLE supports comprehensive legislation that 
improves law enforcement in all ways, at all levels. Police 
reform and qualified immunity are complex issues. We encourage 
all interested parties and law enforcement and Congress to come 
together to address them.
    I thank you, Chair Nadler, and the Committee Members for 
supporting our profession and listening to the voice of NOBLE 
members, and for the invitation to appear today. Thank you.
    [The statement of Mr. Thomas follows:]
    
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    Mr. Cohen. You're welcome, sir. You know my Chief Davis, I 
presume.
    Captain Thomas. Sir?
    Mr. Cohen. Chief Davis in Memphis?
    Captain Thomas. Yes.
    Mr. Cohen. She's a--we hope she's a star. She appears to be 
a star.
    Captain Thomas. Okay.
    Mr. Cohen. Thank you, sir.
    Now, our final Witness we've all been waiting for, Mr. 
William Johnson. He's the Executive Director and General 
Counsel of the National Association of Police Organizations, a 
coalition of police unions and associations from across the 
United States.
    He represents more than 241,000 law enforcement officers, 
and a thousand police units and associations. In his role as 
Executive Director, Mr. Johnson is responsible for NAPO's day-
to-day operations, testifies before Congress, provides advocacy 
before various governmental bodies.
    He received his J.D. from Georgetown University's Law 
Center and an undergraduate degree from Brown University. He 
holds a post-graduate certificate in the nonprofit leadership 
and management from Michigan State University, Mr. Izzo's team.
    Mr. Johnson, you're recognized for five minutes.

                STATEMENT OF WILLIAM J. JOHNSON

    Mr. Johnson. Thank you very much, Chair Mr. Cohen, Chair 
Mr. Nadler, Vice Chair Ms. Ross, and Ranking Member Johnson, 
and the distinguished Members of this Subcommittee.
    Thank you for the opportunity to speak today on behalf of 
the rank-and-file officers on this critical issue of qualified 
immunity.
    First, it is vitally important from our view to emphasize 
what qualified immunity is and what it is not. Qualified 
immunity, when it applies at all, is limited in scope to a 
small subset of civil lawsuits.
    To determine whether qualified immunity applies in any 
given situation, a court must ask whether it would have been 
known to a reasonable officer that the alleged conduct was 
unlawful in the situation she confronted at the time of the 
incident itself.
    If a reasonable officer could not have known that the 
conduct was unlawful, then she is immune from further civil 
liability, but only as to that particular allegation.
    Qualified immunity is therefore an issue of fundamental 
fairness. It only has effect when plaintiffs' attorneys allege 
liability on the part of an officer based upon the violation of 
a right that, in fact, was not known or defined at the time of 
the incidents.
    Qualified immunity also simply does not apply at all 
outside this small subset of particular civil cases. It has 
nothing to do with cases such as the prosecution of Minnesota 
officers in the George Floyd case, nor any other prosecutions 
of officers.
    The officers involved in the death of Mr. Floyd were 
arrested, charged, and convicted. They are already incarcerated 
or pending sentencing. The same holds true in the prosecutions 
of police officers for the Daunte Wright, Botham Jean, Walter 
Scott, Rodney King, and Breonna Taylor cases. The doctrine does 
not and cannot affect such cases at all.
    Second, the doctrine of qualified immunity itself is one 
repeatedly recognized by our Supreme Court as part of its 
constitutional juris prudence. It was not invented by police 
unions, police associations, or police departments.
    The same independent judiciary that the Constitution 
requires to supervise officers in matters such as warrant 
issuance and execution, evidence collection, Miranda warnings, 
and the affording of due process rights to suspects has also 
recognized that a functioning society requires that reasonable 
officers be provided this qualified immunity in applicable 
civil cases.
    Without it, the orderly Administration of justice would 
come to a halt amidst the paralyzing fear of personal liability 
for unknowingly violating an unknown and unknowable right.
    Qualified immunity, thus, does not make officers immune to 
State or Federal criminal charges for a wrongful act, and it 
does not protect officers from internal investigations or 
disciplinary actions including termination.
    Another area that it falls to NAPO to emphasize as the only 
rank-and-file entity present today is the vital importance of 
qualified immunity to individual front-line officers. It is 
these men and women who perform the most difficult and 
dangerous roles in our society.
    The policymakers and administrators who define and assign 
the tasks that our members are to perform are generally not 
themselves at risk of personal liability for their decisions. 
Line officers, as a rule, do not have the financial resources 
or the institutional personnel at their disposal to defend 
themselves from unfounded allegations that agencies, 
municipalities, and high-ranking officials do.
    The line officer, like other working persons of modest 
means, must thus place her confidence in the court system and 
integrity of justice--integrity of judges to correctly apply 
this constitutional standard.
    Related to this point, we note that there have not been 
similar calls for reform or abrogation of qualified immunity 
for firefighters, EMTs, code enforcement officers, construction 
inspectors, or other public actors, all whom, also, have duties 
that directly impact the health, safety, and very lives of 
citizens.
    The next-to-last point I wish to raise concerns the 
consequences of doing away with qualified immunity. Well-
qualified officers, by definition, are able to choose another 
less hazardous, either physically, psychologically, or 
financially, line of work. The public, however, needs and 
relies upon experienced officers.
    Police work, like many other professions, is not learned 
over night, particularly in specific areas of law enforcement 
such as sexual assault, homicide, crimes against children, and 
anti-terror. Years and years of training and experience are 
required before an officer becomes really good at their job.
    If one of us or a family member was a victim or such a 
crime, we would want officers and detectives with decades of 
experience handling that case. Doing away with qualified 
immunity cuts directly against this public policy good. 
Legitimate, proactive policing would be discouraged and 
chilled.
    In summary, a knowing violation of a right already entails 
significant administrative, economic, and even criminal 
liability for officers and the agencies that employ them. 
Qualified immunity reform is, in our view, largely a solution 
in search of a problem.
    Since this type of reform would only serve to impose 
liability in cases where no reasonably officer could have known 
that a right was being violated, it cannot, by definition, 
improve policing, nor deter misconduct.
    The public policy tendency of such reform is to create an 
incentive for officers to do nothing since they cannot, by 
definition, know if they might be personally liable in any 
given situation in which they do act. That is a result that no 
citizen, and certainly no Member of this House, as a lawmaker, 
should conscience.
    Thank you very much, and I'd be happy to answer any 
questions.
    [The statement of Mr. Johnson follows:]
    
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    Mr. Cohen. Thank you, Mr. Johnson.
    That completes our Witnesses and we appreciate each. We now 
proceed under the five-minute Rule of questions where--and I 
will begin by recognizing myself for five minutes.
    Mr. Cohen. Judge Newman, why do you propose making 
municipalities liable for the acts of their employees in 
constitutional tort cases as part of a solution to the problems 
as you see posed qualified immunity doctrine?
    We need--we can't hear you. You're on mute. Start my time 
over, start my time over.
    Judge Newman. Can you hear me now?
    Mr. Cohen. Yeah, we hear you now. Marcel, Marcel Marceau.
    Judge Newman. I propose it for two reasons. First, I think 
it's the right thing to do. I don't see why employers should be 
liable for every tort except a constitutional tort. My second 
reason, quite relevant to this hearing, is--let me begin by 
answering it this way.
    As your Witnesses have indicated, qualified immunity is a 
highly controversial topic. You know that, and that's why 
you're having your hearing. If you create municipal liability, 
you substantially defuse the problem of qualified immunity and 
increase the chance of both having an effective remedy for the 
violation of constitutional rights, and indeed, increase the 
chances of passing a bill.
    With qualified immunity so controversial, I think the 
chances of modifying it are very low. You would know that 
better than I do. I urge you, employer liability coupled with 
suit by the United States, both to defuse the controversy, if 
you did that, you don't even need qualified immunity.
    Indeed, as I pointed out, you don't even need police 
officer liability, which ought to find common ground among the 
police. Because the plaintiff would sue the United States--
would sue the city. The United States could bring the action.
    So, any plaintiff would say why should I bother suing the 
police officer, I might as well sue the city. So, it would 
strengthen the remedy, it would defuse the problem, it would 
enhance the chances of getting anything done in this highly 
controversial area.
    Mr. Cohen. Thank you, Judge. So, in essence, if we did 
this, Mr. Johnson's clients should be happy, Captain Thomas and 
his folks should be happy. Everybody would be happy. Is that 
right?
    Judge Newman. I really think, in all modesty, there's a 
good chance that would occur.
    Mr. Cohen. Thank you, sir.
    Mr. Ago, you confused me entirely. You said that this 
doctrine was created by the courts. Yet, most of my colleagues 
that support this doctrine without change support judges who 
are strict constructionist. How how do you reconcile that? I 
can't do it, it's really a quandary for me.
    Mr. Ago. Thank you, Congressman Cohen, for your question. 
Without trying to avoid the question, I don't want to get 
between you and your colleagues.
    Mr. Cohen. Come on.
    Mr. Ago. I would say--
    Mr. Cohen. I'm talking about my colleagues in the Senate.
    Mr. Ago. I will say that it is a mystery as to why and how 
it has happened that in essence, what happened was in 1967, and 
then refined really in 1983--I'm sorry, 1982, the Supreme Court 
of the United States in essence injected itself into the 
legislative process by writing into the Civil Rights Act of 
1871 this defense of qualified immunity.
    It's nothing that appears in the Civil Rights Act and it's 
nothing that appears in the Constitution. Now is the 
opportunity for this Congress to effectively say that the 
Supreme Court should not have done that, especially when there 
are Members of the Supreme Court on both sides of the political 
spectrum that are troubled by qualified immunity.
    Mr. Cohen. Thank you, sir.
    Professor Reinert, can you please help us with how the 
relevant legal history, which we discussed there, does not 
justify importing the defense of qualified immunity into 1983. 
What's your thought about that?
    Mr. Reinert. Sure. Just elaborate a little bit. What the 
Supreme Court did that was so wrong was it said in the 1967 
case, that it would assume that the common law immunities that 
applied in 1871 would be imported into the Civil Rights Act.
    Now, that was wrong for two reasons.

        (1)  Was there was no common law immunity that looks anything 
        like the qualified immunity of today. That's error number one.
        (2)  The reconstruction Congress in 1871 said when it enacted 
        the statute, that's the precursor to section 1983, says we 
        don't want State law interfering with this right. They said it 
        in explicit language.

    So, there's two reasons that the Supreme Court went off on 
the wrong road to announcing this judge-made doctrine of 
qualified immunity, which is not constitutionally required. 
Contrary to my friend, Mr. Johnson, it has nothing to do with 
the Constitution. It is simply an interpretation of a statute, 
which is erroneous.
    Mr. Cohen. Thank you, sir. Let me ask you a question. Do 
you know my friend Agatha Cole?
    Mr. Reinert. Yes, I do.
    Mr. Cohen. Well, she's made herself distinguished. She 
wrote the amicus brief in West Virginia v. EPA, and I was very 
proud of her for doing that. She invited me to your law school, 
and I appeared there before your student body one time. She's a 
star.
    Mr. Reinert. Yeah, she was a wonderful student of mine, so.
    Mr. Cohen. She owes it all to you, then. Thank you, sir.
    I want to ask unanimous consent that we enter into the 
record the statement from the Constitutional Accountability 
Center and the statement from the Major Cities Chiefs 
Association. Without objection, it will be done.
    [The information follows:]



      

                        MR. COHEN FOR THE RECORD

=======================================================================


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    I now recognize Mr. Johnson for five minutes.
    Mr. Johnson of Louisiana. Thank you, Mr. Chair.
    Ask unanimous consent to enter into the record today this 
statement by Sheriff Greg Champagne. He's the former President, 
current Second Vice President and Chair of Legal Affairs 
Committee of the National Sheriffs Association. Without 
objection, I hope.
    Mr. Cohen. Without objection, you hope rightly.
    [The information follows:]



      

                MR. JOHNSON OF LOUISIANA FOR THE RECORD

=======================================================================

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    Mr. Johnson of Louisiana. Thank you, thank you.
    I stated earlier--my questions are going to be for Mr. 
Johnson. Just by review for everyone listening, he's the 
Executive Director and General Counsel of the National 
Association of Police Organizations. Grateful he can be with us 
by Zoom.
    There are a number of Democrat politicians I mentioned 
earlier who have spent the last several years, and this is just 
a fact, and facts are stubborn things, as John Adams said, 
trying to take funding and resources away from police 
departments. I mean, that's just what happened.
    It seems insane to us. I think people are recognizing how 
crazy the idea is. They've argued, ironically, that somehow 
this will make communities safer.
    We don't have to look far to find individuals who have 
advocated for those things. In fact, we've got several on this 
very Committee. I mean, with respect, Committee Chair Nadler 
was asked a while back whether the New York Police Department 
budget should be cut, and he said, ``Yes, it certainly should 
be cut.''
    Mr. Johnson of Georgia serves on our Judiciary Committee. 
He was asked whether he supports defunding the police. He said, 
``We certainly can repurpose some of the funding.''
    Of course, Ms. Bush, who serves on this Committee, spent 
approximately $200,000 in her campaign funds on private 
security detail last year, by the way. She's a leader, of 
course, of the Defund the Police movement.
    Every single one, every single one of my Democrat 
colleagues on this Subcommittee have voted to end qualified 
immunity. So, these aren't political talking points, these are 
the facts. We have a disagreement on this very important issue.
    Mr. Johnson, question, how does it--what is your response 
when you hear of politicians who voice support for defunding 
the police when you serve law enforcement members across the 
country who put their lives on the line every day to protect 
their communities?
    Mr. Johnson. Thank you, Ranking Member. As a political 
question, I think that mantra is dying away. There certainly 
are some Members--some political officials who continue to tout 
that and some who say that, in fact the Democratic Party, or 
whatever party it is, hasn't gone far enough in a progressive 
direction.
    I think that's incorrect. I think that the Members of 
Congress and other elected officials who have been around 
longer realize that message as a political message and didn't 
sell well in 2020. It certainly didn't sell well in 2021 in the 
elections in Virginia, New Jersey, and so forth.
    Leaving aside the politics of it, just in terms of, I 
guess, the reality of men and women on the ground, whether 
you're a police officer or not, I think public safety is the 
primary value without which nothing else in a community can 
happen. Good schools, small business, people relocating to your 
community. None of that happens unless people feel safe in the 
community.
    It doesn't--you don't have to be a rocket scientist to 
understand that people want police officers in their 
communities. They want ethical, honest, and diligent police 
officers. They want police officers. They want public safety.
    Mr. Johnson of Louisiana. They need it. Even though those 
were--it was political talking points and a political proposal 
and thing they were trying to advance, it had real-world 
consequences. So, the recruitment and the retention of police 
clearly has been affected by this Defund the Police movement.
    Also, we would imagine the eradication of qualified 
immunity. I've talked to law enforcement officers and sheriffs 
and police chiefs in my district, and they are deeply concerned 
that if qualified immunity were somehow to go away or be 
diminished, they would not be able to recruit and retain 
officers. Is that a real concern?
    Mr. Johnson. It is and it's already happening. Qualified 
immunity is one facet of a public campaign in some ways to 
demonize the police or to blame the police for a lot of 
problems that they didn't create but that somehow, we find 
ourselves responsible. At two o'clock in the morning when you 
call, we're the people that show up here.
    Who say that there aren't people who shouldn't be police 
officers for whatever given reason. When they're found out, 
they should be terminated, they should be prosecuted. All that 
has to happen.
    In terms of policing itself, clearly, the continual mantra 
among not all, but some elected officials, among the media, 
that the police are somehow to blame for society's ills, it's 
inaccurate.
    Police just like any other group, whether it's accountants, 
pharmacists, mechanics, or air conditioning repair people, if 
constantly all you're hearing and your family is hearing is 
that you're part of the problem, that you're brutal, racist, 
and ignorant, you can't be helped, you need to be reformed, 
this is just how they are.
    Certainly, it's detrimental to the morale and the 
effectiveness of any profession, and police are no exception to 
that.
    Mr. Johnson of Louisiana. Thank you for articulating that. 
I'm out of time, but I want to say, as you noted, this is not 
rocket science. We need to apply common sense here.
    I yield back.
    Mr. Cohen. Thank you. I just want to comment. It's like 
Ukraine has brought Democrats, most Democrats and Republicans 
together. Qualified immunity has--and the Democrats have called 
a Cato Institute person as our Witness, and the Republicans 
called a union official as theirs.
    Mr. Nadler, you're recognized.
    Chair Nadler. Thank you, Mr. Chair.
    Let me start by setting the record straight. Mr. Johnson 
said that I suggested decreasing the funding of the New York 
City Police Department. It is true. There was a movement at 
that time to shift some of the functions of the Police 
Department to another city department. I agreed with that.
    As the function went from one department to the other, so 
should the funding associated with that function. The total 
funding was not suggested to be decreased.
    Mr. Schweikert, do you agree that qualified immunity has 
failed as a matter of law doctrine and public policy, and if 
so, why?
    Mr. Schweikert. I do agree with that. I think it's failed 
as a matter of law for reasons that Professor Reinert has 
already ably explained. It was simply an invention of the 
Supreme Court.
    While there is some dispute about whether the early Supreme 
Court cases employing an actual good faith understanding of 
qualified immunity had some support in common law, there is no 
dispute at all among any scholars today that the current 
clearly established law standard is absolutely unsupported by 
either the text of section 1983 or the history on which it was 
passed.
    It's failed as a practical and moral matter because it has 
denied justice to victims whose rights have been violated, and 
it has undermined the efficacy of the law enforcement community 
by exacerbating the public's unfortunately accurate perception 
that police officers who routinely commit misconduct are not 
held accountable.
    Chair Nadler. Thank you. Professor Wright, first, 
congratulations on your victory in the Supreme Court litigating 
Taylor v. Riojas. It's an incredible accomplishment, and we 
commend you for your work litigating on behalf of Mr. Taylor.
    It seems the Supreme Court almost always decides its 
qualified immunity cases through the shadow docket. Can you 
describe why this practice is problematic?
    Ms. Wright. Thank you for your question, Chair.
    The practice of deciding cases on the shadow docket is 
problematic for a number of reasons.

        (1)  It puts the processes of the Supreme Court behind a 
        curtain that shields it from public view. So, when a case is 
        decided on the shadow docket, there is no public argument. 
        There are not even briefs on the merits. So, it prevents the 
        public from understanding what's happening and it allows the 
        Supreme Court to make law, and even some policy decisions that 
        govern parts of the United States, without any transparency 
        into the process. So, that's problem number one.
        (2)  When you decide these cases specifically on the shadow 
        docket, qualified immunity cases. These are often cases where 
        the facts are in some dispute. When you do it on the cert stage 
        briefs alone, there is no opportunity for the parties to air 
        that disagreement or to put the actual questions and the actual 
        facts before the court.

    So, it impedes lawmaking and impedes public trust in the 
judiciary process.
    Chair Nadler. Thank you. Captain Thomas, how does qualified 
immunity exacerbate our accountability crisis among law 
enforcement?
    Captain Thomas. Accountability piece, that's what we're 
trying to do now. We must make people believe that the police 
are here to do the right thing at all times. The qualified 
immunity piece, we have officers now, this came up in 
Louisiana, they're actually buying umbrella policies just to 
protect their families.
    So, taking this qualified immunity out of this talk would 
just--we'd be in a situation that we can't control. We couldn't 
control it.
    So, we all need to just get together. That's why we're here 
with Congress. That's why I'm glad we have our colleagues here 
so we can discuss these things. Because we need more talking on 
them points.
    Chair Nadler. Thank you. Judge Newman, can you explain how 
qualified immunity undermines official accountability and 
precludes individuals from effectively vindicating their 
constitutional rights?
    Judge Newman. Well, I don't want to see the matter 
overstated. I think it does that in some cases, and in some 
cases not.
    I've heard the statistics today that very few cases are 
dismissed on qualified immunity. In the 30 cases I've presided 
over at trials in the District Court, most of them resulted 
them in a jury finding in favor of the police officer.
    I think qualified immunity was simply a--they didn't 
understand it. We did a poll later of all the jurors who heard 
these cases. It was clear they didn't understand the doctrine 
at all. My sense was they were simply finding for the police 
officer because they didn't want him to have to pay, and they 
were unaware that the city was going to pay.
    So, it undermined it in the sense that it tilted the scales 
in favor of a verdict for the police officer in a case.
    Chair Nadler. Thank you. Professor Reinert. Proponents of 
qualified immunity often argue that the doctrine is necessary 
to protect officers from being subjected to second-guessing of 
their split-second decisions. Can you explain why this 
viewpoint is incorrect?
    Mr. Reinert. Yeah, it goes to something that Mr. Schweikert 
laid out in great detail in his testimony. The basic reason: 
It's unnecessary to protect officers from being second-guessed 
is because the substantive law already does that.
    That is, I can't violate the Fourth Amendment as an officer 
unless I Act unreasonably in light of all the facts that I 
know, in light of the circumstances, taking into account split-
second decisions I have to make. So, already I'm protected by 
the substantive Fourth Amendment doctrine.
    It's therefore unnecessary to have an extra layer of 
protection that qualified immunity provides. What that does is 
it actually, in a way, protects the officers who come up with 
novel ways of violating people's constitutional rights. Then 
they're protected because no prior case had said that this 
particular way of violating someone's rights was 
unconstitutional.
    Chair Nadler. Thank you. My time has expired, I yield back.
    Mr. Cohen. Thank you, Mr. Nadler.
    Mr. Jordan, I believe, defers to Mr. McClintock. Mr. 
McClintock, you will be next.
    Mr. McClintock. Well, thank you, Mr. Chair.
    Mr. Schweikert, does qualified immunity only apply to the 
police, or does it apply to all public officials?
    Mr. Schweikert. Thank you, Congressman.
    Qualified immunity applies across the board to all public 
officials who might be sued under section 1983.
    Mr. McClintock. So, for example, Lois Lerner violated the 
rights of thousands of Tea Party members by abusing the 
authority of the Internal Revenue Service to go after them for 
their political views. Can she be sued by those victims of her 
bad actions?
    Mr. Schweikert. In the context of Federal officials, they 
are entitled to qualified immunity. There are also additional 
difficulties in suing them under the Bivens Doctrine because 
section--
    Mr. McClintock. I want to--let's just stick to qualified 
immunity protects people like Lois Lerner from the effect of 
their actions, correct?
    Mr. Schweikert. It does, yes.
    Mr. McClintock. Could Michael Flynn sue Andrew McCabe for 
the violation of his civil rights under this doctrine of 
qualified immunity?
    Mr. Schweikert. Qualified immunity would apply in any such 
suit.
    Mr. McClintock. I think it's unfortunate that this issue's 
been entangled with the left's attacks on law enforcement and 
the rule of law. The Fresno case that you mentioned, involving 
the theft of coins seized by obviously crooked police officers.
    Now, you say they were shielded from the effect of their--
from being sued by the victim by the doctrine of qualified 
immunity. They still broke the law, though, didn't they? They 
still stole the coins, didn't they?
    Mr. Schweikert. Absolutely, but the fact that they broke 
the law, even committed a criminal offense, is simply a 
different question than whether there was clearly established 
law as to the constitutional violation they committed.
    Mr. McClintock. So, once they're convicted of that crime, 
can they be sued by the victim, or are those officers still 
shielded by qualified immunity?
    Mr. Schweikert. Even a criminal conviction would be an 
entirely separate matter. Even a police officer who's convicted 
of murder, for killing someone, could still theoretically be 
protected by qualified immunity.
    Mr. McClintock. So, the victim would not be able to recover 
the costs that they had borne.
    Mr. Schweikert. That's correct.
    Mr. McClintock. Because of this constitutional violation.
    Mr. Johnson, employer liability that Judge Newman proposed 
seems to make sense. It would assure that there's a remedy for 
a violation of rights. It assures that individual officers 
wouldn't face financial ruin. It gives the local department 
then an incentive not to tolerate misconduct. Doesn't that make 
sense?
    Mr. Schweikert. I think part of it does, yes, sir. I think 
that there's already a tremendous incentive on the part of 
agencies to deter misconduct.
    Completely aside from the qualified immunity, just the 
attention given by the media, press, attorneys, and so forth, 
there's a tremendous spotlight on law enforcement in the United 
States, and there has been for several years now, specifically 
regarding allegations of misconduct. So, I don't--
    Mr. McClintock. Marshaling public opinion is one thing. 
Actually having an avenue that you can take to protect your 
constitutional rights, that seems to me an important recourse 
that was established by the original law in 1871.
    Mr. Schweikert, is it the 1967 Warren decision that is the 
root of the problem, or is it the '82 modification on the 
clearly established standard?
    Mr. Schweikert. I think the 1982 decision Harlow v. 
Fitzgerald is really the core of the problem. Because it is the 
clearly established law standard, which is what governs today, 
and that's the standard that excuses even unreasonable or 
intentional constitutional violations for the sole reason that 
there doesn't happen to be a prior judicial decision in that 
jurisdiction with similar facts.
    Mr. McClintock. So, if we codified the 1967 Warren test and 
explicitly removed the clearly established standard in the 1982 
modification, would that be an improvement and would that solve 
the problem?
    Mr. Schweikert. I think it would be an improvement. I don't 
think it would solve the problem, because that would still 
leave some circumstances where someone's rights were violated, 
and they're nevertheless left without a remedy.
    I think a better solution would be a shared liability 
regime between employers and employees, and simply clarifying 
that if the individual officer had an actual good-faith belief 
in the legality of what they were doing, then it would simply 
be the employer who was liable, not the individual.
    It's still essential to ensure that anyone whose rights are 
violated does get a remedy.
    Mr. McClintock. Well, obviously the maxim is that for every 
right, there must be a remedy. If you don't have a remedy, then 
you really don't have the right.
    Mr. Schweikert. Exactly.
    Mr. McClintock. Thank you.
    Mr. Cohen. Thank you, Mr. McClintock.
    Next, we will let the tiger out of the cage. Mr. Raskin.
    Mr. Raskin. Thank you, Mr. Chair.
    It's disappointed me that one of our esteemed colleagues 
chose to recycle debunked partisan dogma about defunding the 
police when it is his party that voted to oppose $350 billion 
in the American Rescue Plan that the majority used to fund the 
police and the firefighters and the first responders and the 
public health infrastructure. They voted no, they voted not to 
fund the police and the other public employees.
    It's his party that had a couple dozen Members who voted 
not to award the Congressional Gold Medal to members of the 
Capitol Police Force who risked their lives to defend our lives 
on January 6th against a lethal, deadly, violent insurrection 
unleashed against us.
    So, spare us the phony lectures about defunding the police, 
because everybody knows who wants to defund the police and who 
wants to defend the police. Ask any of the 150 cops who were 
wounded, hospitalized, and injured on January 6th right here at 
our own house.
    It's disappointing maybe because this is an issue where we 
can have real bipartisan consensus, and we do. Take Fifth 
Circuit Court Judge Don Willett, a Trump appointee, who has now 
distinguished himself as a strong critic of qualified immunity, 
which he says smacks of unqualified impunity, letting public 
officials duck consequences for bad behavior, no matter how 
palpably unreasonable, as long as they were first to behave 
badly.
    So, it's a remarkable doctrine that has evolved up totally 
made up by judges.
    Now, Judge Newman, you said something which I thought had 
penetrating lucidity to it. Does the problem of qualified 
immunity go away entirely if we just decide to hold municipal 
employers accountable in respondeat superior fashion for the 
actions of their employees in tort?
    Because the way I see this is that by absolving their 
employers, then people want to sue the cops. Of course a cop 
making 50 or 60 thousand dollars a year is not really going to 
be able to pay if they beat the hell out of somebody.
    So, then we've constructed all these perverse doctrines to 
try to protect the cop, but we're avoiding the underlying 
issue, which is that there's no incentive to change the overall 
culture of policing in certain departments where they've given 
license to that conduct.
    So, would you just elaborate what you said before? Would 
the problem of qualified immunity go away if we correct the 
decisions that have immunized local police departments and 
States and counties?
    Judge Newman. Whether it goes away would be entirely up to 
the legislation you all came up with. You can make employers 
liable and keep qualified immunity. Or you could make employers 
liable and abolish qualified immunity. So, whether it would go 
away depends on what you do with qualified immunity.
    The point is, once you create employer liability, you don't 
need qualified immunity. You don't even need liability of the 
police officer. If you kept it, the plaintiffs would sue the 
employer.
    So, if you kept it, it would probably be almost a non-
issue. If you abolished it, then obviously it's a nonissue. 
Which way you go is up to you, but if you--
    Mr. Raskin. Am I recalling correctly that it was the Monell 
decision which said that the localities are not responsible 
in--
    Judge Newman. Correct. Not responsible unless they meet the 
ridiculously restrictive test of a policy of perpetrating 
misconduct. The cities don't do that.
    Mr. Raskin. Well, look, I just think this is something that 
cuts against the fundamental conservative principles and 
liberal principles, and we've got to deal with this problem 
quickly.
    I think you for having this hearing, Mr. Chair. I yield 
back.
    Mr. Cohen. Thank you, Mr. Raskin. Next, I think we've got 
Mr. Roy from Texas. He yields to Ms. Fischbach. I'm sorry, Ms. 
Fischbach.
    Ms. Fischbach. Thank you, Mr. Chair.
    Mr. Johnson, I think Ranking Member Johnson had asked you 
about how the Democrats' calls to defund the police and end 
qualified immunity have affected morale.
    I want to know how this would affect their ability to do 
their job, because that's what we're talking about, is having 
police on the streets, doing their job, protecting all society. 
First with defunding the police, and second with removing 
qualified immunity.
    Mr. Johnson. Thank you, Representative. Again, I don't want 
to, as a Witness, talk about one party versus the other party's 
policies.
    On this particular issue, though, to answer your question, 
police officers, just like anybody else, they're men and women 
that we grew up with, we went to school with them, and they 
live in our neighborhoods. It affects them, it affects their 
morale, just any other profession would be affected by the 
constant attacks that somehow police are not to be trusted, are 
violent, brutal, racist, and this and that.
    By using individual cases out of approximately a million 
officers in the United States to say that, well, that's how 
they all are, that's how they act. They can't be trusted, 
they're brutal, and they're racist. We wouldn't tolerate that 
type of broad-brush attack on any other class of citizens. It 
becomes acceptable for police.
    The effect of that on morale is very detrimental. The 
effect of that is bad for public safety. Just like any other 
profession, whether it's your auto mechanic, pharmacist, or 
journalist, if morale is low in the workplace, performance 
suffers.
    Unfortunately in this case, when performance suffers, it's 
the public that pays the price in terms of public safety.
    Ms. Fischbach. Thank you, Mr. Johnson. Not only are they 
people they went to high school with, but in my case, I have 
several in my family and former law enforcement officers that--
so, they are in our family too and they are part of our family.
    I appreciate your insight on that, and it seems to me that 
now is not the time to be talking about removing qualified 
immunity. Law enforcement is under attack, like you mentioned, 
in cities all around America. Members of this Subcommittee have 
called for defunding the police, and Members of Congress.
    Meanwhile, crime is on the rise, and we may see crime 
continue to rise. So, now is the time to be standing behind law 
enforcement and supporting them from attacks on their morale 
and their ability to perform their job.
    Just, as a follow up, Mr. Johnson, Democrats believe that 
officers who can demonstrate in a court of law that they are 
acting in good faith should be at risk of facing frivolous 
personal lawsuits.
    What kind of effect will this have on the officers' 
willingness to intervene during a crime in progress? Doesn't 
ending qualified immunity punish officers who are willing to 
rush into volatile situations in an attempt to save lives and 
prevent further injury?
    Mr. Johnson. Yes, yes, Representative Fischbach, it does. 
It creates a disincentive for officers to act. Because what 
we're talking about in the qualified immunity context, by 
definition, we're talking about situations where an unknown 
constitutional right, in fact, unknowable constitutional right, 
may cause personal liability to an individual officer.
    Because, by definition, it was unknown and unknowable, then 
trying to address that cannot, by definition, deter other 
misconduct or improve police--policing. Because officers don't 
know what's allowed and what's not allowed in terms of this.
    In addressing some of the legal arguments about well, this 
lawsuit or this class of lawsuits and so forth, I get it and I 
understand the argument in terms of large groups of lawsuits 
when you look at them as a whole.
    When you talk about an individual officer and his or her 
mindset, they don't think about, well, it's unlikely that out 
of this class, I'm the unlucky person who gets personally held 
liable.
    The situation that comes about in rank-and-file mind is 
that I might be liable. Therefore, it's a disincentive. It's 
safer for my career, for my family, for my financial health 
maybe just not to take action in this case. I think that's a 
situation that none of us wants, on any side of the aisle.
    Ms. Fischbach. Thank you, Mr. Johnson. I just want to say 
this hearing, we know the reason. This is just another chance 
for Democrats to try to vilify a profession which is built on 
selflessness and service.
    Democrats want more drugs in the community. That's why we 
are going to floor to deal with the marijuana bill today. They 
want to bail out violent criminals. Now, they want criminals to 
be allowed to sue law enforcement officers.
    With that, I yield back, Mr. Chair.
    Mr. Cohen. Thank you, Ms. Fischbach, my friend and 
colleague. I'd share with you the difficulty I have in hearing 
from less than two percent of our caucus that's for defunding 
the police.
    In defense of those Members that want to say they defund 
the police, none of them have invited any of us to orgies and 
none of us have invited people to snort cocaine.
    I now recognize Mr. Hank Johnson.
    Ms. Fischbach. Wow.
    Mr. Johnson of Georgia. Thank you, Mr. Chair. I thank the 
Witnesses for their testimony today.
    Mr. Johnson, in your testimony, you stated, quote, ``that a 
functioning society requires that reasonable officers be 
provided this qualified immunity in applicable civil cases. 
Without it, the orderly administration of justice would come to 
a halt amidst paralyzing fear of personal liability.'' Am I 
right?
    Mr. Johnson. Yes, sir, that's in my testimony, 
Representative Johnson.
    Mr. Johnson of Georgia. You heard Judge Newman, who 
testified that--and by the way, Judge Newman spent 42 years on 
the U.S. Court of Appeals and as a Federal District Court 
judge, he presided at the trial of more 30 police misconduct 
cases.
    You recall he testified that contracts between cities and 
police unions provide that the city indemnify police officers 
found liable in lawsuits under section 1983.
    Judge Newman also testified that it was his experience that 
jurors in police misconduct cases don't know that the 
municipality would pay the judgment against the police officer. 
They would frequently find the officer not liable, just to 
avoid what they thought would be the imposition of liability on 
the officer. In other words, the officer would have to pay the 
judgment themselves.
    Mr. Johnson, you don't disagree with Judge Newman on that 
point, do you?
    Mr. Johnson. No, Representative Johnson, I certainly don't 
disagree with his observations as a sitting judge and an 
appellate judge.
    Mr. Johnson of Georgia. Let me ask you this--
    Mr. Johnson. My experience comes from a different part of 
the criminal justice system.
    Mr. Johnson of Georgia. Well, we're not talking about 
criminal justice system, we're talking about our civil justice 
system and its ability to do justice by way of persons who 
would be aggrieved by police misconduct.
    I know Mr. Johnson, that you would agree that there are 
some instances of police misconduct, unnecessary use of force, 
those kinds of things do happen, isn't that correct?
    Mr. Johnson. Of course, they do, sir. Yes, sir.
    Mr. Johnson of Georgia. Yeah. Judge Newman recommends that 
Congress create a law that mandates that the city would be 
liable to pay any judgment rendered against a police officer 
for misconduct. That qualified immunity could remain a defense 
available to the police officer.
    Mr. Johnson, what is wrong with Judge Newman's proposed 
solution?
    Mr. Johnson. Representative Johnson, I would direct the 
Subcommittee to the submitted written testimony of the National 
Sheriffs Association, for example, for the concerns that 
employers have regarding that. I think that issue--
    Mr. Johnson of Georgia. I mean, we're talking about putting 
it on the employer to have to pay any judgment rendered against 
their employee. What about that solution do you disagree with?
    Mr. Johnson. That's what I--and I don't want to step out of 
my lane talking for the sheriffs and the chiefs, but--
    Mr. Johnson of Georgia. Well, well, I mean--
    Mr. Johnson. Since you ask, I'll answer the question.
    Mr. Johnson of Georgia. This doesn't really require much 
analysis. It's a very common-sense solution to a real problem. 
Citizens have been stopped from holding rogue police officers 
accountable when they commit misconduct.
    The denial of justice in those kinds of circumstances due 
to this doctrine of qualified immunity is an injustice. We're 
just simply talking about how to render an injustice something 
that does not continually happen in these cases in America.
    So, what criticism would have on Congress on passing a law 
that imposed liability on governments for the actions of their 
employees?
    Mr. Johnson. Thank you, Representative Johnson. I 
understand the argument.
    My concern on that would be that when we're talking about 
liability itself, whether it's on the individual officer or on 
the employing agency, our view of qualified immunity, immunity 
in general in this context, whether it's for the officer or the 
employing agency, is that in fairness and in justice, it ought 
not be imposed if we're talking about a liability predicated 
upon the violation of a constitutional right when that right 
was not yet known at the time that the--
    Mr. Johnson of Georgia. Well, you could still have the 
doctrine of qualified immunity in place, but you would simply 
have a situation where juries would know that if they found a 
police officer liable, then that police officer would not be 
personally liable. It would be the city that would pay the 
judgment. What's wrong with that?
    Mr. Cohen. Quickly respond, we're over time. If you quickly 
respond to the--I'd appreciate it.
    Mr. Johnson. Yes, Chair. I think the problem with that, 
writ large, is that the same reason that we don't want jurors 
to know, hey, if this person's liable, someone else is going to 
pay the bill. Because it tends to engender greater verdicts 
than we would otherwise have based simply on the evidence.
    Mr. Johnson of Georgia. You just simply don't want to have 
police officers--
    Mr. Cohen. Time's up.
    Mr. Johnson of Georgia. Held liable, do you.
    Mr. Cohen. I've got to call time.
    Mr. Johnson of Georgia. With that, I yield back, Mr. Chair. 
Thank you.
    Mr. Cohen. Thank you, thank you, Mr. Johnson. Next, I'd 
like to recognize Mr. Roy.
    Mr. Roy. I thank the Chair, thank you for holding this 
hearing.
    I'd like to note that I'm glad that my friend from Maryland 
who I don't see on the screen anymore is committed to attacking 
judicial activism as much as I like to do. Is now quoting my 
constitutionalist friend and Fifth Circuit judge Don Willett, 
whose daughter is a classmate of my son's school in Austin, 
Texas. He's a good friend.
    Notably not being cited right now by my Democratic 
colleagues is my friend and great American devoted to the 
Constitution, Justice Clarence Thomas, who said in his 
concurrence in Ziegler, ``I write separately to note my growing 
concern with our qualified immunity jurisprudence.''
    Until we shift the focus of our inquiry to whether immunity 
existed in common law, we will continue to substitute our own 
policy preferences for the mandates of Congress. In an 
appropriate case, we should reconsider our qualified immunity 
jurisprudence. Well, I'm glad we're all agreeing with Clarence 
Thomas today.
    The problem is that, as my friend from California, Mr. 
McClintock, suggested, is that my Democratic colleagues are:

        (1)  Targeting almost entirely and solely police officers and 
        that is entirely political.
        (2)  Intertwining that attack with a coordinated defunding 
        effort, notwithstanding my friend from Maryland's 
        characterization to the contrary.

    Failing to acknowledge, for example, the $150 million cut 
in Austin, Texas; the $22 million in Baltimore, Maryland; the 
$16 million in Boston, Massachusetts; the $1 million in 
Burlington, Vermont; the $10 million in Denver, Colorado; $2 
million in Hartford, Connecticut; $42 million in Kansas City; 
and $150 million Los Angeles, CA.
    Of course, notably, most of these jurisdictions the 
following year refunded those cuts because they saw the 
foolishness of the kneejerk reaction that destroyed and 
devastated our police officers' ability to do their jobs across 
the country.
    Austin puts money back in their budget, and guess what? The 
police academies are completely destroyed. Now, you have to go 
back and try to figure out how to recruit. Now, you don't have 
people being able to answer 911 calls.
    Now, my Democratic colleagues want to talk about qualified 
immunity. Then they say, oh, you voted against $350 billion in 
funding. They don't tell you that was in a $1.9 trillion 
monstrosity filled with all sorts of other socialist, big 
government garbage.
    They don't tell you that the $350 billion has language in 
there saying that it's about community investing. Not just 
money for cops to be able to go do their job, but community 
investing.
    I heard the Chair of the Judiciary talk about, oh, I was 
fine with moving money from the cops to some other department. 
Well, of course he takes that money and take it away from cops 
and go dump it into some social engineering program in New 
York, New York City.
    That's the reality of what we're dealing with instead of 
being able to sit here and say let's actually have a discussion 
about qualified immunity. Last summer my colleagues forced a 
vote and didn't give us the chance to amend on the floor or 
have a debate on actual qualified immunity. Instead of just 
gutting it and targeting cops.
    I actually think we're having a productive conversation 
here with respect to what Judge Newman has produced and put 
forward that I think my friend from California said positive 
things about, and that Mr. Schweikert from Cato has said.
    So, I would just like to kind of throw out there in my last 
two minutes, and I'd like to throw a question to Judge Newman.
    Do you believe, sir, Judge Newman, that if you were to go 
down the road you suggested, that would--you're talking about 
applying that across the board, not just to police departments, 
right? That would try to address the qualified immunity problem 
for government officials of all stripes.
    Judge Newman. Yes, just like 1983 said. Whenever somebody 
acting under color of law violates--denies the constitutional 
rights of a person, any person, under color of law. It could be 
a jailer. It's certainly not limited to police officers.
    Mr. Roy. Okay. Well, I appreciate that. Then if I made 
direct a question to Mr. Mangual and Mr. Johnson.
    How would you gentlemen view the possibility of going down 
the road of what Judge Newman puts out there, that we have 
liability for the cities, for the departments, etc., as opposed 
to targeting the individuals, and then let that get sorted out 
between the individuals and the cities, the sovereigns, if you 
will?
    Mr. Mangual. I certainly think that's a proposal that's 
worthy of close consideration. I would note that it mirrors 
exactly what happens right now.
    As I said earlier in my testimony, 99.98 percent of all 
dollars recovered against individual police officers are 
actually paid by the governmental entity that employs them. 
That's already the case. So, I do think it's certainly worth 
considering.
    What I would add to that, though, is addressing the problem 
of Saucier and its reversal. I think allowing courts to 
continually punt constitutional questions leaves the law 
underdeveloped in the civil rights arena. Re-instituting that 
proper sequence I think would go a long way.
    Mr. Roy. Well, thank you. I got 15 seconds left. I think 
Mr. Johnson answered Mr. McClintock's question on that. I would 
just note that this idea of making sure this applies beyond 
police officers is critically important.
    I'll point out a case in Colorado Springs where a case 
worker for the El Paso County Department of Human Services 
received permission from her supervisor to inspect a four-year-
old girl's buttocks, stomach, and back for signs of physical 
abuse. Did so, took pictures without approval from the parents. 
The parents had no recourse. We need to address this across the 
board.
    Mr. Chair, I'm over my time, I appreciate it.
    Mr. Cohen. Thank you, Mr. Roy.
    I'd like to make a little mea culpa, I guess. I've been 
teasing you a little bit about the sex orgies and the cocaine. 
I just recently learned that Mr. McCarthy had a closed-door 
hearing with Mr. Cawthorn, and he apparently told Mr. McCarthy 
that what he said was untrue.
    Now, Roger Stone says that's not true, that Mr. Cawthorn 
still backs it up. I'll take Mr. McCarthy's statement.
    Ms. Ross, you're recognized for five minutes.
    Ms. Ross. Thank you, Mr. Chair, and thank you to all the 
Witnesses for testifying.
    I'm thrilled that I went after Mr. Roy because we agree 
completely on this. The problem of qualified immunity goes well 
beyond the police. As a former civil rights litigator, I 
actually rarely sued the police. I sued lots of other people, 
and they invoked qualified immunity.
    So, we should be addressing this problem writ large. Many 
examples in the public mind right now involve the police, and 
we shouldn't exempt them from any change in qualified immunity.
    We have had egregious situations in North Carolina with the 
Department of Social Services. We've seen egregious situations 
with sexual misconduct and treatment of women. We've seen 
egregious situations with racial discrimination and 
discrimination against immigrants. All those issues should be 
on the table today.
    As we know, the doctrine of qualified immunity protects 
State and local officials, not just the police, where they can 
only be held liable for violating somebody's rights if a court 
has previously ruled that the actions are unconstitutional, the 
actions. Therein lies the problem.
    If no decision exists, the official can be immune from 
liability, even if they intentionally violate the Constitution. 
Qualified immunity acts like a time warp. In its current form, 
the doctrine allows conduct to be judged by completely outdated 
standards and parts of our history that we are trying to 
rectify. It doesn't let us rectify history.
    Public officials should not be allowed to avoid the 
consequences for egregious actions by hiding behind judicial 
opinions that previously found conduct acceptable. The actions 
of law enforcement and other public officials must be judged 
under evolving standards of what constitutes constitutional 
conduct, not decades- or centuries-old endorsing of 
unconscionable practices.
    My first question is for Mr. Schweikert. In your written 
testimony, you cite several cases in which qualified immunity 
was granted because the cased differed just slightly from 
clearly established precedent. In the interest of time, I'm not 
going to go through a couple of them. My question is how has 
the clearly established law test stunted the development of 
constitutional law?
    Mr. Schweikert. Thank you very much for the question. It's 
has stunted the development of constitutional law because the 
Supreme Court has held, as Mr. Mangual has previously 
discussed, that courts are allowed to dismiss a case by saying, 
well, we're not even going to decide whether this was 
constitutional or not, we're just saying it's not clearly 
established. So, qualified immunity, case dismissed.
    Which means the law then does not become clearly 
established going forward. So, this is why Judge Don Willett 
has called qualified immunity a catch-22.
    It means that, in fact, the exact same misconduct could be 
committed the very next day and again, again, and again, and it 
could still be excused based on qualified immunity because 
courts refuse to decide the constitutional question, especially 
in the most difficult cases where clarification of the law is 
most needed.
    Ms. Ross. Thank you very much. Mr. Ago, we got a great 
example from Mr. Roy earlier of local officials who violated 
constitutional rights, but granted qualified immunity not in 
the law enforcement context. Could you share with us other 
examples outside of the law enforcement context?
    Mr. Ago. Thank you, Congresswoman Ross. The Lawyers' 
Committee is concerned about law enforcement because of the 
devastating and differential impact of police abuse and 
misconduct against communities of color.
    That said, there are substantial numbers of examples 
outside the law enforcement context where, for example, public 
school teachers abuse their power. In situations like what you 
mentioned, Congresswoman Ross, social workers abuse their power 
and violate the constitutional rights of the people that 
they're supposed to be serving.
    So, that there are lots of examples outside of law 
enforcement. The Lawyers' Committee's concern is law 
enforcement, though.
    Ms. Ross. To our distinguished judge with my last 16 
minutes, if we--16 seconds, I'm sorry. I wish I had 16 minutes. 
Would your solution deal with this broad problem much more 
effectively?
    Judge Newman. The answer is yes, I think it would make an 
effective remedy. I think it would make it a modification that 
has some chances of being enacted.
    From the controversy I've heard today, I despair that, as 
what happened 30 years ago when I testified to you, nothing 
happened. So, I think you ought to consider municipal 
liability, employer liability generally, to get something done 
about this problem.
    Ms. Ross. Thank you, and I yield back.
    Mr. Cohen. I am going to yield the Chair to Congressman 
Ross so she can have the opportunity to introduce and recognize 
her distinguished colleague.
    Ms. Ross. [Presiding.] Ms. Garcia, you are recognized.
    Ms. Garcia. Thank you, Madam Chair.
    Thank you, Mr. Chair, for convening this very important 
hearing.
    There seems to be some confusion as to why we are even 
here, and it has been really hard to sit here and listen to 
some of the comments that are made from the other side of the 
aisle about the reason for this hearing, and what Democrats do 
or don't believe, and even a Witness referred to the policies 
of the parties. This is not a discussion of a policy of any 
party, but it is, in fact, a very serious discussion about law, 
and law that was made by a court, and what we need to do to 
make some reforms, because reforms are needed. To hear my 
colleagues talk about defunding police and how Democrats are 
doing nothing but really focused in a coordinated effort to do 
this, I mean, that is just nonsense.
    All they need to do is to read the President's proposed 
budget, and the President himself has said that we need to 
invest more money in funding effective, accountable community 
policing, not less. His budget reflects that, including by more 
than doubling cops hiring programs--300 new deputy marshals; 
$20.6 billion in discretionary funding for Federal law 
enforcement and State and local enforcement; crime prevention 
programs; $537 million to put more police officers--more police 
officers--on the beat for accountability of community policing. 
That is the keyword. It is about behavior; it is about 
accountability.
    I am glad that Ms. Ross mentioned that this is not just a 
discussion about police. We know there are good police 
officers, and we also know there are good public officials. 
However, just like every crate of apples, the old saying says, 
there is always one bad apple in the crate. Unfortunately, I 
think that is what we are focused on today.
    So, public officials, not only law enforcement, abuse their 
power and sometimes weaponize it against our most vulnerable 
communities. We cannot turn a willful blind eye to that fact. 
Revising the qualified immunity doctrine is a step in the right 
direction. The qualified immunity doctrine, in practice, ends 
up being absolute immunity and, effectively, deprives victims 
of their day in court.
    Ms. Wright, I want to start with you. You mentioned the 
Taylor case, which in no way can be justified. Those officers, 
or those, I guess, jail attendants were acting in good faith; 
that is a defense. When we talk about qualified immunity, it 
really isn't just about those officers, because, in fact, those 
officers don't really pay the judgments, is that correct?
    Ms. Wright. That is correct, Congresswoman. In my 
experience, in almost all cases, it is not the officers on the 
line for the financial responsibility. It is their employers, 
or the State, or municipality.
    Ms. Garcia. Okay. This proposal to change it to an 
employer's liability, and really, it is their employers who end 
up writing the check because of the rules of indemnity. I know 
that there are some municipal governments throughout this 
country who, frankly, some have had to raise taxes to pay 
judgments. Some have had to float judgment bonds to pay those 
settlements. So, what is that doing to local governments and 
their ability to really focus on putting the police on the 
street, putting the crime prevention programs forward, and 
making sure that they keep the community safe?
    Ms. Wright. What we have seen in municipalities and 
jurisdictions where they have to pay these large settlements is 
that what often follows is a direction to police officers to 
not violate the Constitution in that specific way. So, it is a 
way of actually, because the citizens, the taxpayers, are 
ultimately really the ones who suffer, because it is their 
money that pays the judgment, there is pressure by the 
employer, by the municipality, to make sure that the officers 
are not doing the same thing again, because that will result in 
a political price. So, I think that proposal and municipalities 
being responsible actually increases accountability and 
officers acting within the law.
    Ms. Garcia. So, Mr. Schweikert, could you give us examples 
where the defense of good faith did work? I mean, that it was 
upheld in court and the officer was absolved of any 
accountability and liability.
    Mr. Schweikert. Sure. Thank you for the question.
    I mean, the only think I would clarify is that qualified 
immunity that exists today is not a good-faith standard. It has 
nothing to do with whether officers were acting in good faith. 
In fact, in many cases officers are explicitly acting in bad 
faith, and they still receive qualified immunity.
    Two examples that I mentioned were the Jessop case, where 
officers were alleged to have stolen money for their own 
personal enrichment. They received qualified immunity.
    The Frasier case, where officers were--and I think, this 
does relate to a point that Mr. Johnson has repeatedly said, 
that this only applies in unknowable constitutional violations, 
and that is simply untrue. The officer in the Frasier case--
    Ms. Ross. Mr. Schweikert, could you wrap up?
    Mr. Schweikert. Yes.
    Ms. Garcia. We are running overtime.
    Mr. Schweikert. Of course.
    The officers in Frasier were explicitly trained on this 
man's First Amendment rights and they violated it knowingly, 
and they still received qualified immunity.
    Ms. Garcia. Thank you, Madam Chair.
    I am hopeful that my colleagues across the aisle will vote 
for the President's budget with all that money, all those 
investments to reduce crime and help our police officers.
    Thank you.
    Ms. Ross. Noted.
    Mr. Owens, you are recognized.
    Mr. Owens. Thank you, Madam Chair.
    Like other States in America, Utah has an incredible law 
enforcement community. These men and women are heroes. The vast 
majority of them are good, honest officers who risk their lives 
every day to keep our communities safe.
    With that, from what I have heard today again from my 
officers is eliminating the qualified immunity would impede the 
abilities of police officers to do their job. Our friends at 
the National Fraternal Order of Police have said the following, 
and I quote:

          Every single factual scenario a [police] officer encounters 
        is different and unknown. It is almost impossible for an 
        officer to determine how a legal doctrine will apply to a 
        split-second factual scenario. Thus, . . . the reasonable 
        officer needs to be afforded a certain degree of discretion to 
        make split-second decisions in situations that could risk 
        lives, including their own, and put them at risk.
          Qualified immunity does not protect officers who knowingly 
        violate the law, nor does it affect criminal proceedings or 
        internal investigations. This doctrine is vital to law 
        enforcement officers who need this protection to perform their 
        discretionary functions fundamental to their law enforcement 
        and public safety mission. The FOP will not yield in our 
        efforts to preserve the existing qualified immunity doctrine.

    I end quote with that.
    Mr. Mangual, does your research show that there is a 
significant number of claims against law enforcement officers 
that are denied because of qualified immunity?
    Mr. Mangual. It does not. So, far as I am aware, the data 
are very clear in showing that qualified immunity accounts for 
a very, very small slice of police litigation outcomes.
    Mr. Owens. Okay. Thank you.
    Mr. Johnson, I have heard from my local law enforcement 
officers, especially those in rural areas, and they are having 
trouble recruiting good candidates because of a number of 
factors, including a toxic defund the police movement we have 
all had to deal with the last couple of years that broad-
brushed the meaning of an honorable profession, and now, 
inflation. In your opinion, will stripping law enforcement 
officers of qualified immunity hurt recruitment efforts, 
especially, specifically, in rural areas?
    Mr. Johnson. Yes, Representative Owens, it would. The 
reason I say that is because there are so many hurdles that a 
man or woman has to go through to become a police officer in 
the first place--education, background checks, lie detector 
tests, drug tests, psychological evaluations, training, and so 
on.
    The men and women that we recruit--and rightfully so--are 
well-qualified for these positions. By definition, they are 
also well-qualified to do other things, too. So, if this law 
enforcement profession becomes even more difficult and 
dangerous than it already is, and the men and women are 
demonized unfairly for trying to do a good job, then we can 
only expect that recruitment and retention are going to go 
down, and that is exactly what we are seeing in rural 
departments and in large agencies across the United States.
    Mr. Owens. Thank you.
    Then, Madam Chair, I yield back my time. Thank you so much.
    Ms. Ross. Ms. Bush, you are recognized.
    Ms. Bush. Thank you, and I thank you for convening this 
hearing.
    In America, the legal shield and court-made doctrine of 
qualified immunity has allowed police officers to kill Black 
people with impunity. When a police officer shot a 10-year-old 
child in Georgia, the 11th Circuit U.S. Court of Appeals held 
that the officer was entitled to qualified immunity. When 
police officers tazed an unarmed pregnant woman in Seattle, a 
court found that the officer was entitled to qualified 
immunity. When officers set a man on fire, the Fifth Circuit 
held that officers involved were entitled to qualified 
immunity.
    All of this is happening as our country is reckoning with 
the reality of record-breaking police killings. There were only 
15, ``one'' ``five,'' 15 days last year in which police 
officers didn't kill someone. The year 2021 broke the record 
for police killings in this country, 1,055 deaths by law 
enforcement, and that is likely an undercount.
    St. Louis continues to lead the country year after year in 
police killings per capita. In a country that is governed by 
the so-called rule of law, you have to ask yourself, are police 
officers above the law? Does the Constitution not apply to 
Black people?
    Mr. Ago, I believe that true justice is saving lives. Can 
you please explain why achieving true justice demands that we 
reconsider the doctrine of qualified immunity?
    Mr. Ago. Thank you for your question, Congresswoman Bush.
    The problem with police misconduct and police violence is 
that it is meted out against communities of color in a 
devastating and differential way. Those are facts that we 
cannot get around.
    By eliminating qualified immunity, what you do is you start 
to bring accountability for those situations where police 
violate the civil rights predominantly and disproportionately 
borne by people of color. What that creates is a cycle of trust 
and safety and better policing, because accountability breeds 
trust in the system by people who see that officers who violate 
the civil rights of people, predominately people of color, when 
we are talking about the statistics, then when those officers 
are held accountable, the other members of the community begin 
to trust that the system works for them. They begin to, then, 
trust policing. It is a cycle that benefits communities of 
color.
    Ms. Bush. Absolutely. Thank you, Mr. Ago.
    Qualified immunity signals to law enforcement that they can 
get away with unconstitutional conduct. It is why I am happy to 
support Representative Pressley's Ending Qualified Immunity 
Act, and it is why I believe that any comprehensive police 
reform must include ending qualified immunity.
    Professor Reinert, in the aftermath of the Civil War, the 
Ku Klux Klan and other White supremacist vigilantes violently 
attacked Black people and infiltrated law enforcement 
departments across this country, prompting the need for legal 
protections.
    Can you talk about the history of qualified immunity and 
the way in which it is deeply tied to our country's history of 
enslavement and White supremacy?
    Mr. Reinert. Yes, I would be happy to. Thank you for the 
question.
    I think the first part of it goes to the premise of your 
question, which is that the point of the 1871 Civil Rights Act 
was both to provide a remedy for duly created rights and, also, 
to take enforcement of that remedy away from States because of 
the mistrust that States would actually enforce the 
Constitution against their own officers.
    We fast forward to the Supreme Court's creation of the 
doctrine of 1967. It was in the context of arresting of people 
who were protesting desegregation. It was part of the Freedom 
Riders. That is where the Court first recognized this good-
faith immunity. It is a way to undermine all the goals that the 
Reconstruction Congress was trying to achieve when it enacted 
the 1871 Civil Rights Act.
    When the Court altered the immunity doctrine in 1982 to 
make it even more protective of police officers, and also, 
added all sorts of procedural protections along the way, as my 
written testimony details, it takes us even farther from 
enforcing the vision of the Reconstruction Congress, which was 
to truly enforce these transformative rights after the Civil 
War.
    Ms. Bush. Thank you. Thank you so much.
    As lawmakers, we must be dedicated to saving lives, 
especially Black lives. To do that, we must confront and 
acknowledge the forces of White supremacy that we are up 
against. The truth is that less than two percent of police 
officers have been charged with a crime for police killing as a 
result of qualified immunity. So, true justice and true 
accountability means ending this legal shield.
    Thank you and the truth you just heard.
    I yield back.
    Ms. Ross. Ms. Jackson Lee?
    Ms. Jackson Lee. Thank you so very much.
    It leaves me to at least a moment of concluding the essence 
of this hearing and to make a proclamation or pronouncement 
that we can deal with qualified immunity, and we can save 
lives.
    Let me indicate, for the framing of this, that both the 
Sixth and Seventh Amendments are seemingly violated with 
qualified immunity. In simple layman terms, what qualified 
immunities existence does is it stops everyone at the 
courthouse door. Because what happens is the court says you 
have no case because there is qualified immunity. You don't 
even get to the facts circumstance before cases are dismissed.
    Evidence the Robbie Tolan case that went up to the United 
States Supreme Court on the basis of a Federal District court 
dismissing a police case, an officer out of Bellaire, Texas, 
before facts could even be heard. So, even out of fairness, 
qualified immunity must be subject to modification because you 
close the courthouse door.
    Let me ask these questions, and as I do so, I raise these 
questions in the name of good law enforcement, Captain, across 
America. I raise these questions in the name of Danny Ray 
Thomas, Robbie Tolan, Nicolas Chavez, George Floyd, Pam Turner, 
Breonna Taylor, Daunte Wright, Eric Garner, and many others.
    So, let me just say to you, have you seen a massive 
movement of police officers, good police officers, not rising 
to the occasion because of false rumors about local 
jurisdictions not wanting police officers? Captain?
    Captain Thomas. No, ma'am, Congresswoman, I haven't seen 
that.
    Ms. Jackson Lee. With the issue of qualified immunity--and 
I think you very much; we should note NOBLE has officers in all 
categories. You have officers, leading major chiefs as well, 
that are members of your organization.
    In the instance of qualified immunity, is my simple 
definition one that you can accept, which means qualified 
immunity keeps the offended persons from even getting into the 
courthouse to get the facts of what happened?
    Captain Thomas. Yes, ma'am, that is true.
    Ms. Jackson Lee. Is it not wrong to keep people out of the 
courthouse, so that facts can be portrayed, whether it is the 
offendant police officer or the family who has lost a loved 
one?
    Captain Thomas. No, ma'am, I feel that everybody needs 
justice. The qualified amendment must be preserved and 
reformed. Everybody needs justice. So, they should be heard in 
the courthouse.
    Ms. Jackson Lee. Thank you.
    Judge Newman, can we articulate your offering of the 
municipality can be sued, but you are not precluding the 
officer from being a defendant as well?
    Judge Newman. I am not precluding it, but I am saying the 
suit against the municipality would be much more successful 
because the municipality does not have the defense of qualified 
immunity.
    Ms. Jackson Lee. The monetary capacity, you are suggesting, 
would be in the realm of the municipality? Is that what you are 
saying?
    Judge Newman. That is correct. It has been pointed out they 
now indemnify, but you have to be careful here. Indemnifying 
means paying a judgment already entered against the employee. 
So, if there is no judgment against the employee, there is no 
indemnity. If the suit is directly against the employer and the 
employer has no qualified immunity, that is clear; it is a much 
more successful remedy than a suit against the officer.
    Ms. Jackson Lee. What I would say, Judge, is that I think 
this should be one of the frameworks--and I mean not the only 
one--that we look at in terms of dealing with qualified 
immunity. My point is you are blocked at the courthouse door if 
you use qualified immunity as saying there is no reason to even 
hold a trial. You understand what I am saying?
    Judge Newman. Yes, that certainly happens sometimes, but 
there are many cases where--in other words, if the case is 
dismissed as a matter of law at summary judgment because the 
facts are undisputed. There are many cases where the facts are 
disputed, where it doesn't go off on summary judgment. It goes 
to trial. As I indicated, I tried 30 of these many years ago, 
and they very often end up with a verdict for the police 
officer or the public employee.
    Ms. Jackson Lee. Thank you.
    The facts in the Robbie Tolan case were the judge dismissed 
it on, as I understand it, summary judgment, just on the fact 
that qualified immunity existed, and gave that permissiveness, 
that protection to the officer.
    Let me quickly go to Ms. Wright.
    I want to thank Mr. Reinert and Mr. Schweikert for 
articulating the qualified immunity lack of being able to have 
case law.
    Let me indicate to Ms. Wright, again, what a heinous set of 
circumstances as it relates to your client. Can you tell me the 
heinousness of the victimization of defendants or incarcerated 
persons when there is qualified immunity?
    Ms. Ross. Ms. Wright, briefly. I know this is a serious 
matter, but--
    Ms. Jackson Lee. I have some issues to put into the record.
    I yield. Thank you, Madam Chair.
    Ms. Wright. Just briefly, I will say I have described what 
happened to Mr. Taylor, but the people who are imprisoned are 
among the weakest in our community because they rely on the 
State for everything.
    Just now before the Supreme Court is a case where guards 
knew a person was suicidal, put him in a cell with a 30-foot 
cord and watched him commit suicide without intervening or 
calling for help. Those guards got qualified immunity. So, it 
is something that happens often within the prison context.
    Ms. Jackson Lee. Let me thank the Chair for her indulgence 
and, as well, all the Witnesses.
    I would like to put into the record a Washington Post 
article, March 29, 2022, ``Black Americans are killed at a much 
higher rate than White Americans. Although half of the people 
that are shot and killed by police are White, Black Americans 
are shot at a disproportionate rate.'' This article will relay 
that.
    Then, a full list of Black people killed by police in 2021. 
That is a Newsweek article on12/28.
    Madam Chair, I yield back by saying this Committee and the 
Judiciary Committee can find solutions to this, and the 
Witnesses have given us a roadmap which we can follow.
    I thank you so very much, and I yield back.
    Ms. Ross. Without objection.
    [The information follows:]



      

                     MS. JACKSON LEE FOR THE RECORD

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    Ms. Ross. Mr. Johnson?
    Mr. Johnson of Louisiana. Thank you, Madam Chair.
    Just briefly, I also have a unanimous consent. I wanted to 
enter into the record a list that our Committee put together of 
Democrat-led cities that have defunded the police with a total 
of $1.66 billion cut. Please enter that.
    Ms. Ross. Without objection.
    [The information follows:]



      

                MR. JOHNSON OF LOUISIANA FOR THE RECORD

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    Mr. Johnson of Louisiana. Just one point of personal 
privilege. Mr. Raskin mentioned, I think when I was out of the 
room, that my statements about Democrats wanting to defund the 
police was inaccurate in some way. So, I was encouraged to hear 
him express his support, suddenly, on behalf of Democrats, for 
funding the police. We certainly welcome that.
    The Democrats' $1.9 trillion partisan spending legislation 
does not specifically direct funding of local law enforcement 
agencies. I have urged the Biden Administration myself, Madam 
Chair, to correct that error in the rulemaking process by 
specifically directing a portion of that funding to local 
police departments and have gotten zero response.
    Ms. Jackson Lee. Would my good friend yield? Would my good 
friend yield?
    Mr. Johnson of Louisiana. Well, I am almost--I have one--
    Ms. Ross. No, we are going to conclude today's hearing.
    Mr. Johnson of Louisiana. The Ranking Member has the 
privilege of making--because the Chair does all the time, and 
Ms. Jackson Lee went over a minute. I am finished with one 
statement.
    I want to invite Mr. Raskin to join me in signing on that 
effort to the White House, and I will send him the 
correspondence today.
    I yield back.
    Ms. Jackson Lee. Will the gentleman yield?
    Mr. Johnson of Louisiana. Yes, ma'am.
    Ms. Jackson Lee. If I might, Madam Chair, if he would 
yield?
    There are a lot of stereotypes that are going around. I 
respect individual positions of Members, Republicans and 
Democrats. I assume you do not associate with your Republican 
friends that consider January 6th just a group of tourists. 
Then, we may have a big tent; you might have a big tent.
    I think you need to look at the facts by piercing those 
statistics that you have suggesting broad definitions. We have 
the right to have people with differing opinions, but I can 
assure you there are enough relatives of police officers in and 
among Democratic Members of Congress, that we are also 
respecters of the law.
    I yield back.
    Mr. Johnson of Louisiana. Well, I respect you, of course, 
my colleague, and I acknowledge that. I will tell you that it 
has been a position of Members on this Committee whom I quoted 
earlier who have wanted to defend the police. That is a fact.
    I yield back.
    Ms. Ross. Okay. Thank you very much for this conclusion.
    I do want to note that Mr. Roy and I are in complete 
agreement about how to solve this problem, and I hope that that 
and our judge's suggestion will help provide a roadmap going 
forward.
    This concludes today's hearing. I want to thank all our 
Witnesses for appearing today.
    Without objection, all Members will have five legislative 
days to submit additional written questions for the Witnesses 
or additional materials for the record.
    The hearing is adjourned.
    [Whereupon, at 12:28 p.m., the Subcommittee was adjourned.]



      

                                APPENDIX

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