Qualified immunity defense proposal dropped by judicial panel

Law Enforcement in riot gear are seen during a protest in Rochester, New York
Police officers in riot gear are seen during a protest over the death of a Black man, Daniel Prude, after police put a spit hood over his head during an arrest on March 23, in Rochester, New York, U.S., September 5, 2020. Picture taken September 5, 2020. REUTERS/Brendan McDermid
  • Proposed rule would have extended to 60 days from 14 the time officials have to respond to lawsuits
  • Justice Department unable to provide data to support need for rule change

(Reuters) - A judicial panel on Tuesday abandoned a proposal by the U.S. Justice Department to give federal officials more time to respond to lawsuits against them related to their duties, particularly when they rely on a "qualified immunity" defense often use to shield law enforcement accused of excessive force.

The judiciary's Advisory Committee on Civil Rules without objection withdrew a proposed rule it had previously backed that would have extended to 60 days from 14 the time officials have to answer lawsuits if they survive initial motions to dismiss.

The committee made the decision during a meeting in San Diego following opposition by a prominent civil rights group and the Justice Department's acknowledgment that it lacked data to justify the need for the change.

"There isn't really any way for the DOJ to drill down on this in a way that would give those looking for empirical support for what they are looking for," U.S. District Judge Robert Dow, the panel's Chicago-based chair, said on Tuesday.

The doctrine protects police officers and other officials from litigation in certain circumstances and became a focus of calls for criminal justice reform after George Floyd died under a Minneapolis police officer's knee in 2020.

The department, which represented 2,028 officials facing lawsuits last year, proposed the rule in August during the Trump administration arguing officials usually have an immediate right to appeal when a judge declines to dismiss a case on qualified immunity grounds.

Absent an extension, the department may need to file an answer and begin engaging in scheduling and discovery, activities that would be cut off once it files a notice of appeal.

But the NAACP Legal Defense Fund argued a rule change would further delay litigation and exacerbate problems with qualified immunity.

The Biden administration initially supported the proposal, saying it would eliminate the need to ask courts to grant routine extensions of the 14-day deadline while the solicitor general considers pursuing appeals.

The advisory committee backed the proposal on a 10-5 vote in April 2021, but the Standing Committee on Rules of Practice and Procedure sent it back for further consideration over concerns about giving the government so much time.

The advisory panel in October asked the Justice Department to bolster its case by gathering data on how often it seeks and receives deadline extensions.

But at Tuesday's meeting, Justice Department official Josh Gardner said that while the proposal still "makes sense and has merit," the department does not track such data and, if it is needed, the panel should withdraw the proposal.

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.