'Squad' Dems may unravel police-reform deal in push to end qualified immunity: 'Weapon of structural racism'

Members of the progressive "Squad" could torpedo police reform efforts in Congress with their latest demands that any bill "must" include changes to "qualified immunity" protection for police officers. 

The demands -- which stop short of a threat to vote against any bill that doesn't roll back qualified immunity but come close to that line -- could doom legislation that Republicans and Democrats have been negotiating for weeks. 

The letter is signed by Reps. Cori Bush, D-Mo.; Ayanna Pressley, D-Mass.; Mondaire Jones, D-N.Y.; Rashida Tlaib, D-Mich.; Ilhan Omar, D-Minn.; Alexandria Ocasio-Cortez, D-N.Y.; Jamaal Bowman, D-N.Y., Bonnie Watson Coleman, D-N.J.; Pramila Jayapal, D-Wash.; and Jan Schakowsky, D-Ill. 

Qualified immunity is a protection that shields government officials of all stripes from being personally sued for violating somebody's rights in the course of reasonably doing their jobs unless the breached rights are "clearly established in the law." In practice, this often means that police officers who go well beyond their authority in handling an incident cannot be held civilly liable for their actions. 

"We are concerned by recent discussions that the provision ending qualified immunity for local, state, and federal law enforcement may be removed in order to strike a bipartisan deal in the Senate," the letter said. "Given that police violence, as a weapon of structural racism, continues to have devastating and deadly consequences for Black and brown lives across our country, we strongly urge you to not only maintain but strengthen the provision eliminating qualified immunity as negotiations in the Senate continue."

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The letter adds: "In March, the House passed the bipartisan George Floyd Justice in Policing Act with the inclusion of the provision to eliminate qualified immunity for police officers, and now the Senate must do the same."

All of the members who signed the letter are considered members of "The Squad" of young, minority, far-left House members except for Jayapal, Schakwosky and Coleman. 

With the House split 219-211 in favor of Democrats, these 10 members could scuttle any bill that Democrats are for and Republicans are against by switching sides to vote with Republicans. But their demand that any final legislation include qualified immunity could kill police reform efforts in the Senate where any bill needs the support of at least 10 Republicans to clear the 60-vote filibuster threshold. 

The debate on qualified immunity does not fall cleanly along party lines – there are some Republicans who vocally support ending it or reducing how broad its protections are. But many Republicans say qualified immunity in its current form provides an important protection for police from frivolous lawsuits. 

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"[R]emoving qualified immunity is a non-starter for Republicans because it would result in subjecting police officers to an endless loop of meaningless lawsuits and distractions that would keep them off the streets pursuing criminals," Rep. Jim Banks, R-Ind., the chairman of the Republican Study Committee, wrote in an op-ed for The Hill.

Banks railed against the liberal Democrats' letter on Twitter Friday. 

"Democrat leaders have a choice. Either craft a bipartisan bill by leaving qualified immunity intact or appease the radical left wing of their caucus who want to abolish the police!" he said. 

It's not clear exactly how many Republicans in the Senate are open to reforming qualified immunity . If there are less than 10, which appears to be the case, then a police reform bill wouldn't be able to clear a filibuster. 

Some Republicans have previously said they would be open to reforming qualified immunity, including Sen. Mike Braun, R-Ind., who introduced a bill to that effect last year. He's since reversed that stance and wrote in the Indianapolis Star that, "I oppose any reform to the current doctrine of qualified immunity, which I believe extends critical protections for law enforcement officers who are forced to act in split-second scenarios when lives are on the line. Any federal reform package that cannot garner the support of law enforcement is not the right solution to me."

Braun's bill would have reversed the onus in suits against police to force the officers to point to the law, regulation or court case that authorized their conduct rather than the current standard that forces plaintiffs to find exactly where in the law an officer's actions were expressly prohibited. 

Supreme Court Justice Clarence Thomas has also questioned qualified immunity. And Trump-appointed Fifth Circuit Court of Appeals Judge Don Willett railed against it in a 2018 opinion. 

"I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime," Willett said in a 2018 opinion. "To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable."

Willet said qualified immunity presents a "Catch-22" for people who say the government violated their rights: "No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose."

But Sen. Tim Scott, R-S.C., the chief negotiator for Senate Republicans on police reform, said he is "on the exact opposite side" of Rep. Karen Bass, D-Calif., on qualified immunity. Bass wants it eliminated, but top Democrats have expressed some flexibility on the issue for the current reform bill. 

Senate Minority Leader Mitch McConnell, R-Ky., has also said keeping qualified immunity is "essential." 

"I think qualified immunity for police officers needs to continue - because without it I don't know how we get anyone to be a police offer," he said this month. 

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It's not clear when or if Congress will be able to advance police reform legislation. But it is almost certain at this point to miss the White House's previous May 25 deadline to send a bill to President Biden. 

Fox News' Jacqui Heinrich contributed to this report.