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McEnany: Any reduction of qualified immunity for police officers a 'non-starter' for Trump admin

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At odds with SCOTUS Justice Clarence Thomas?

Photo by Chip Somodevilla/Getty Images

In comments at Monday's press briefing, White House press secretary Kayleigh McEnany seemed to rule out the possibility that the White House would support any police reform legislation that would eliminate or reduce "qualified immunity" for police officers.

During the course of a response to a question about Democratic proposals for criminal justice reform that have been floated in the wake of the civil unrest following the death of Minneapolis resident George Floyd, McEnany noted that she hadn't spoken with President Donald Trump about the specifics of the proposal and that he had not reviewed them, but that the bill would be unlikely to obtain the president's support because of several "non-starters," including reform to the doctrine of "qualified immunity."

The doctrine of "qualified immunity" is not currently codified in federal law, and was essentially created by judges as an interpretation of 42 USC 1983, which permits United States citizens to sue agents of the government for deprivation of their constitutional rights.

Although the statute does not contain this language, federal courts have decreed that police officers cannot be held liable under this statute unless the plaintiff can prove a "clearly established" violation of rights — which in practice means that the plaintiff who wishes to sue a police officer must prove that the officer acted exactly in a way that was already decreed to be unconstitutional by a prior court. Critics of the doctrine, which include conservative Supreme Court Justice Clarence Thomas, note that nothing in the history of the statute supports such an interpretation of the law, and that it makes it unnecessarily difficult to sue police officers.

Although the doctrine does not have any direct relevance to the George Floyd case, proponents of reform have argued that repealing the doctrine would make police officers more cautious about using force against suspects.

That very suspicion, however, is the stated reason why the administration would oppose any such measure. According to McEnany, "Particularly on the immunity issue, you have AG [William] Barr saying, this weekend he was asked about reduced immunity and he said, 'I don't think we need to reduce immunity to go after the bad cops because that would result certainly in police pulling back, which is not advisable.'"

McEnany did say, however, that President Trump was open to a number of ideas and that he was "looking at a number of proposals."

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