A proposed amendment to the Ohio constitution that would end qualified immunity is on hold due to a case before the Ohio Supreme Court, and proponents have turned to a federal court in hopes of moving the process along and getting the amendment on the ballot in November.
Qualified immunity refers to the longstanding legal doctrine of granting broad (but not total) immunity from criminal and civil liability to public servants, including police officers.
Backers of the proposed amendment, which is called Protecting Ohioans’ Constitutional Rights, describe qualified immunity as “a legal loophole that makes it almost impossible to hold our government accountable through the civil courts when it violates our constitutional rights.”
Cynthia Brown, founder and committee chair of the Ohio Coalition to End Qualified Immunity (OCEQI) cited 2022 polling by Campaign Zero that found that 87% of Ohioans “think police should face consequences for violating a person’s rights while conducting police business.”
Trouble getting to the ballot
But getting a proposed amendment on the ballot for voters to decide is a long process, and OCEQI has been stuck in one of the stages — securing approval from the Ohio Attorney General for the amendment’s summary language — since last year.
The summary is what supporters of an amendment show to people when they’re gathering signatures on petitions, the next step in the process. That’s why state law requires that the summary be a “fair and truthful statement” about the effects of the proposed changes to the state constitution.
The law also gives the attorney general sole discretion to determine that.
Attorney General Dave Yost has rejected OCCEQI’s summary eight times. After the latest rejection, in March, attorney Mark Brown (no relation to Cynthia) got involved and took the case to the Ohio Supreme Court.
He also asked the court to expedite, or fast track, the case because petition signatures are due July 3. But the court declined.
“We are presently ‘stuck’ in the Ohio Supreme Court, since it refused to expedite and its usual time-frame for resolution in the absence of expedite stretches into months,” Mark Brown explained in an email to Signal Cleveland. That’s why he’s asked a federal court to get involved.
What’s next?
Like other amendment campaigns, OCEQI has until July 3 to gather more than 400,000 valid signatures from registered voters, in at least 44 of Ohio’s 88 counties, to qualify for the ballot in November.
But they can’t collect any until the dispute over the summary is resolved.
In his complaint to the U.S. District Court, Southern District of Ohio, Mark Brown asked the court to require Yost to certify the summary and to permanently bar him from rejecting summaries “without a proper form of immediate, expedited judicial review and resolution.”
If the summary is eventually approved, it will go next to the Ohio Ballot Board. The board’s role is to “evaluate the petition to ensure that it contains only one constitutional amendment,” according to the Ohio Secretary of State’s web site.
The board is made up of three Republicans and two Democrats. One of the Republicans is Secretary of State Frank LaRose. Last year, LaRose made significant and controversial changes to the summary of Issue 1, the constitutional amendment that ensured reproductive rights, including access to abortion. LaRose is a vocal opponent of abortion rights, and the changes he made had nothing to do with the number of amendments contained in the proposed language.
Still, the board voted along party lines to adopt LaRose’s edits.
In August, LaRose tweeted about his opposition to the proposed qualified immunity amendment, saying it would “unleash a flood of frivolous, politically motivated lawsuits against the brave men and women trying to protect our communities.”
Cynthia Brown of OCEQI said she remains confident about bringing the amendment to voters in November.
“Nothing surprises us anymore,” she said, referring to the many setbacks, “but we always come back. … This isn’t a political issue, it’s a human issue.”
Suggested Reading
What is qualified immunity?
Qualified immunity “protects state and local officials, including law enforcement officers, from individual liability unless the official violated a clearly established constitutional right,” according to the nonpartisan National Conference of State Legislatures.