Ohio proposal to end qualified immunity struggles to clear first hurdle

A group trying to eliminate qualified immunity, allowing citizens to sue police officers and other public employees who violate their constitutional rights, has repeatedly hit a brick wall in Ohio.

The Ohio Coalition to End Qualified Immunity hasn't been able to clear the first hurdle to make the November 2024 ballot. For the third time, Ohio Attorney General Dave Yost, a Republican and former county prosecutor, rejected the group's summary of its proposed constitutional amendment. Yost rejected a predecessor's attempt three times, too.

Yost's role is to certify that the proposed summary of the amendment is a "fair and truthful representation" of what the measure would actually do. Ohio Coalition to End Qualified Immunity spokesman Kyle Pierce says Yost is nit-picking.

"The continued obstinacy from AG Yost's office suggests a lean towards obstructionism rather than genuine understanding," the Ohio Coalition to End Qualified Immunity wrote in a statement. "We remind the AG's office that the purpose of these processes is to further democratic participation, not hinder it."

But Yost spokeswoman Bethany McCorkle said the group's mistakes, not any bias on Yost's part were to blame for their struggles.

"The attorney general has approved ballot language for multiple petitions with which he did not agree. The petitioners should consider hiring counsel that is familiar with this area of law to assist with drafting," McCorkle said. "In addition, if they feel there has been a legal error, they have a clear path for review at the Supreme Court of Ohio.”

The group plans to revise its summary and try again in September. Advocates are considering whether to take the issue to the Ohio Supreme Court.

"That's something we're looking into as an idea of interest, but it's not something we've made any decision on," Pierce said.

What would the proposed amendment to end qualified immunity do?

Under the proposed amendment, Ohioans could sue police officers, prosecutors, prison guards, judges or other public employees for violating their constitutional rights. They could also sue the state, city or other government body that employed them. The employers would be responsible for any fines or financial penalties, Pierce said.

Under current law and judicial doctrine, these actions are protected by "qualified immunity," a legal concept that prevents government employees from being sued unless they violate "clearly established law," which is a high bar to clear.

Mike Weinman, director of government affairs for the Fraternal Order of Police of Ohio, says those protections are needed for officers to avoid financially devastating lawsuits for split-second decisions. "We don’t want police officers to lose their houses," he said.

Weinman said the results can be deadly if officers overthink or delay a decision because of concerns about a future lawsuit.

The proposal would require the government employer, if they were found liable, to take steps to prevent a similar rights violation in the future. Firing the employee who violated someone's rights wouldn't prevent a lawsuit.

What problems did Yost find?

Yost cited several problems with the proposed language, including that the summary wasn't short enough and it could confuse people about which public employees could be sued.

"Upon review of the summary, we identified omissions and misstatements that, as a whole, would mislead a potential signer as to the actual scope and effect of the proposed amendment," Yost wrote in a letter explaining the summary's deficiencies.

Past summaries were rejected because they didn't explain how and where someone could sue, didn't make clear that terminating the employee isn't required and didn't state that Ohio employees could be sued as well.

Weinman said the summaries so far have been deceptive and have not explained the full scope of the constitutional amendment.

How did the measure get started?

Cynthia Brown has been fighting to end qualified immunity since Columbus police fatally shot her nephew, Kareem Ali Nadir Jones, on July 7, 2017. The two officers were not charged, and an internal review found they did not violate the department's use-of-force policy.

The idea received national attention after a Minneapolis police officer killed George Floyd. While the legal doctrine wasn't used as a defense in the lawsuit Floyd's family filed against Minneapolis, it sparked a debate about qualified immunity across the United States.

When Democrats controlled the U.S. House, they passed the George Floyd Justice In Policing Act, which would have ended qualified immunity for police officers. But it never cleared the divided Senate, where GOP Sen. Tim Scott, of South Carolina, called the qualified immunity a "poison pill" for the bill.

Several states, including Colorado and New Mexico, have passed laws allowing citizens to sue police in state court for constitutional violations. There is a national campaign to end qualified immunity in other states.

In Ohio, Democrats in the super-minority of the state's Legislature have proposed restrictions on qualified immunity, but they have seen little to no movement. That led Brown and others to push for a constitutional amendment instead.

Jessie Balmert is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.

This article originally appeared on Cincinnati Enquirer: Ohio proposal to end qualified immunity struggles to clear first step