The issue: How Congress should approach police reform, amid the national outcry over the deaths of unarmed Black men and women, is up for debate in North Carolina’s U.S. Senate race.

“Qualified immunity” — shielding government officials from civil liability for their actions — for police officers and law enforcement officials is one of the areas of disagreement between congressional Democrats and Republicans who have sought reforms this year after the killing of George Floyd by Minneapolis police officers.

Why we’re checking this: During their first debate Monday night, Republican Sen. Thom Tillis said Democratic challenger Cal Cunningham supports ending qualified immunity. Cunningham said Tillis wasn’t telling the truth. We wanted to know which one was describing Cunningham’s position on it accurately.

What you need to know: We were not able to find an instance of Cunningham calling for ending qualified immunity, but he has proposed to “limit” it and “change the standard for bringing cases against officers who violate victims’ civil and Constitutional rights.”

So what is qualified immunity? Here’s some background.

The death of Floyd, an unarmed Black man, set off nationwide protests throughout the summer — and led to separate police reform proposals in the Democratic-led House and GOP-controlled Senate.

Among the differences in the legislation: what to do about qualified immunity, which protects government officials, including police officers, from lawsuits unless the officials violated a “clearly established” constitutional right, the Supreme Court has found.

The immunity’s broad protection is intended for “all but the plainly incompetent or those who knowingly violate the law,” according to the Supreme Court.

But the “clearly established” test has come to mean that plaintiffs must find near identical violations already allowed by Supreme Court or appellate courts in the same jurisdiction, The Washington Post reported.

“Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably,” wrote Supreme Court Justice Samuel Alito in 2009 in a unanimous decision.

Qualified immunity is not “a constitutional concept,” said Fred J. Williams, an associate professor of law at North Carolina Central University. “The present discussion relates to the immunity that legislators have given to law enforcement officers who are in the performance of their duties. The problem with it is how it has been interpreted and broadened. It tells police officers that they can do anything they want to and they won’t be held individually responsible.”

Proponents of the policy say that qualified immunity affords “police officers some level of deference when making split-second decisions,” according to a Congressional Research Service examination of the issue earlier this year.

The debate back-and-forth between Tillis and Cunningham on Monday stemmed from questions about systemic racism.

“Cal supports something that’s called ending qualified immunity,” Tillis said. “What that tells every police officer is that even if you’re cleared of all charges, then you could be sued, you could lose your home, your retirement and everything you’ve worked for.”

Cunningham twice said “that’s not true” on the debate stage during Tillis’ remarks.

“Right now, the law of America is a patchwork about civil liability when law enforcement agents can and cannot be sued. They don’t understand. The public doesn’t understand,” Cunningham said. “We need to statutize what is permissible and what is not permissible. If a law enforcement agent uses a clearly unapproved technique like the knee that was on the neck of George Floyd for over eight minutes, no law enforcement agent thinks that that’s right and that officer should be held accountable.”

Tillis asked: “Are you saying here tonight, before the 10 million people of North Carolina, that you are against removing qualified immunity for law enforcement?”

Cunningham responded: “I have called for reforming it and statutizing it.”

“That sounds a lot like what Cal needs to say to get elected,” Tillis said.

Earlier this summer, Cunningham released his priorities for change in policing, which included a section labeled “limiting qualified immunity and making it easier for those whose rights have been violated to hold bad actors accountable.”

“It’s clear that the laws intended to allow victims to have their cases heard — including our civil rights laws, our criminal laws and our civil justice laws — too often have the opposite effect,” Cunningham wrote. “These laws are clearly rooted in a false assumption that those in power can do no wrong. We should limit qualified immunity and change the standard for bringing cases against officers who violate victims’ civil and Constitutional rights. When law enforcement violates departmental policies or operates outside of its certified training, it should not be insulated from liability to the victims of these breaches.”

Tillis campaign spokesman Andrew Romeo said in an email to The News & Observer that “there is no difference between eliminating qualified immunity and limiting it.”

“The bottom line is Cunningham wants to make it easier to sue good police officers and weaken law enforcement,” Romeo said.

Brandon L. Garrett, faculty director at Duke Law School’s Wilson Center for Science and Justice, said it is unlikely that individual police officers would have to pay out civil penalties.

“Their employer is responsible for anything they do in the scope of their employment,” Garrett said. “In general, when people are on the job, their employer handles the litigation.”

U.S. House Democrats passed a bill earlier this year that would have made it easier to prosecute police misconduct by amending federal criminal law from “willfulness” to “recklessness,” a lower threshold.

It also would have reformed qualified immunity, making it easier for individuals to recover damages when police violate their criminal rights, according to one of the bill’s sponsors, Rep. Karen Bass of California.

Sen. Mike Braun, an Indiana Republican, introduced legislation to reform qualified immunity, saying the court’s overreach and current interpretation “allows law enforcement in many of the high-profile excessive force and abuse of power cases to avoid civil suits from citizens seeking redress for violation of their legal rights.”

But Sen. Tim Scott of South Carolina, the lone Black Republican in the U.S. Senate, said ending qualified immunity was a “poison pill” in discussions about criminal justice or policing reform. He said Republicans consider law enforcement officers part of their “core constituency” and does not support a change that targets the officer.

“If you want to have a conversation about restitution and recourse under the umbrella of qualified immunity, I’ve actually said several times, count me in to that conversation, because that’s not about an officer; that’s about a culture, and the way that you make a culture more responsible is making the threshold for suing cities and departments easier because of the egregious acts of individuals,” Scott said in an extended interview with Vox.

“When you make it all about the individual officer, you run good cops out, you make it far more difficult to get anything accomplished.”

Scott was the lead sponsor on the Senate’s JUSTICE Act, which Tillis supported. It did not include anything about qualified immunity, but required other reforms in training, tactics, body cameras and incident reporting. Democrats objected to the bill, saying it did not go far enough and that they did not have any input into the legislation, and it failed in the Senate.

During Monday’s debate, Tillis discussed his support for the bill. Cunningham said he would not support it, saying it was written behind closed doors by Republicans without Democratic input or hearings.

Tillis touted his endorsements from the North Carolina Police Benevolent Association and North Carolina Troopers Association during the debate. Cunningham, who served on Gov. Roy Cooper’s crime commission from 2017 to 2019 and was a military prosecutor, said he marched in a racial justice protest with Wake County Sheriff Gerald Baker earlier this summer.

Our sources:

Tillis-Cunningham debate, Sept. 14, 2020

Phone interview with Fred J. Williams at North Carolina Central University, Sept. 16, 2020

Phone interview with Brandon L. Garrett at Duke Law School, Sept. 16, 2020

Cunningham’s Priorities for Constructive Change in Policing, June 11, 2020

Congressional Research Service, Policing the Police: Qualified Immunity and Considerations for Change, June 25, 2020

Cornell Law School, Qualified immunity

CBS News, House Democrats unveil police reform bill amid nationwide protests, June 8, 2020

Vox, Interview with Sen. Tim Scott, July 7, 2020

Washington Post: Suing police for abuse is nearly impossible. The Supreme Court can fix that., June 3, 2020

The News & Observer, Tillis, Cunningham oppose defunding the police, push other reforms, June 11, 2020

Washington Post, Supreme Court asked to reconsider immunity available to police accused of brutality, June 4, 2020

Rep. Karen Bass, House passes George Floyd Justice in Policing Act, June 25, 2020

New York Times, How George Floyd was killed in police custody, May 30, 2020

Spectrum News, NC lawmakers weigh competing police reform plans, June 17, 2020

This story was produced by The News & Observer Fact-Checking Project, which shares fact-checks with newsrooms statewide. It was edited by Politics Editor Jordan Schrader and Managing Editor Jane Elizabeth. Submit a suggestion for what we should check, or a comment or suggestion about our fact-checking, at bit.ly/nandofactcheck.

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