Earlier this month, Libertarian Rep. Justin Amash introduced the Ending Qualified Immunity Act. The bill, now co-sponsored by both Democrats and Republicans, would eliminate qualified immunity, a judicially created legal doctrine that protects many police officers from lawsuits brought by victims of excessive force. Ending qualified immunity is an important measure for increasing law enforcement accountability, and because the U.S. Supreme Court announced last week that it will not reconsider its qualified immunity decisions, the onus is now on Congress to act. But this task is an odd one because the Ending Qualified Immunity Act amends a law that never expressly included qualified immunity in the first place.

A police officer’s use of excessive force is considered an “unreasonable seizure” in violation of the Fourth Amendment. The Constitution, however, does not specify how police officers, or others acting under state authority, are to be held accountable for depriving individuals of their constitutional rights. So Congress took up the task, creating a remedy in the Civil Rights Act of 1871 in the wake of the Civil War.

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