The death of George Floyd at the hands of Minnesota law enforcement has put the issue of police violence and accountability in the national spotlight once again—along with a doctrine well-known to the U.S. Supreme Court.
Floyd’s killing sparked nationwide protests against the use of excessive force by police against people of color. The demonstrations have in turn spawned more violence, with video clips of enforcers repelling non-violent demonstrators with what some may characterize as excessive force, as President Donald Trump exhorted governors and law enforcement to “dominate” the streets.
Those incidents, the Floyd case, and other well-known cases involving police violence in recent years have prompted a debate over the doctrine of “qualified immunity"—a defense created by the Supreme Court that is often successfully employed by law enforcement to stop civil suits alleging violations of constitutional rights.
Qualified immunity is just one piece of the puzzle, but it’s an important one when criminal charges against police are often abandoned or difficult to prove, leaving civil suits as a central avenue for victims and families to seek redress.
So what exactly is qualified immunity, where did it come from, and what is its future?
1. What is Qualified Immunity?
The doctrine was born in the late 1960s, at the height of the American civil rights movement.
Federal law enacted after the Civil War had given people the right to sue state officials in federal court for violations of their constitutional rights. But in 1967, the Supreme Court abridged that relief in a case stemming from a suit against police officers by white and black clergymen arrested on a prayer pilgrimage to promote racial integration.
Those clergymen had attempted to use a segregated interstate bus terminal waiting room in Jackson, Miss., in 1961, but were arrested for “breaching the peace” under a law that was later found unconstitutional.
The high court held that immunity from lawsuits is available to officials based on a defense of “good faith.” This case is the starting point for the doctrine we now know as qualified immunity.
2. How Does Immunity Work?
The immunity is not just a shield from liability, but protects police and other officials from having to go to trial in the first place.
The Supreme Court has gone on to say that plaintiffs can’t prevail unless they show that officials violated “clearly established” rights, including in Fourth Amendment excessive force claims.
That’s had the effect of blocking allegations that sometimes seem outlandish because the Supreme Court has required that there be a prior case similar enough to put the officer on notice that their conduct violates constitutional principles.
Moreover, the court has said that trial courts weighing these claims can skip over the question of whether the official has violated the law, and instead simply say that no prior decision says they did.
That creates a Catch-22, critics say, where a plaintiff can’t vindicate an alleged rights violation—no matter how egregious—simply because courts have never encountered such a violation before, or have never ruled on it.
3. What Types of Claims Get Immunity?
State officials, including police, have gained immunity from allegations that they stole expensive jewelry during a search, violated someone’s First Amendment rights, or failed to provide adequate medical care.
A pending petition before the high court, for example, bills itself as an “archetypal example of the problems with current qualified immunity doctrine.”
In that one, a plaintiff who had a police dog sicced on him and got bitten even though he was sitting on the ground with his hands up was blocked from suit on immunity grounds.
The reason for blocking the suit and granting immunity was that a prior case only found unlawful police action where the plaintiff was lying down, not sitting.
4. What Have Justices Said Lately?
The Supreme Court as a whole has been fairly quiet on the issue. It has mainly been Justices Sonia Sotomayor and Clarence Thomas who have spoken out.
In a 2017 case, Thomas wrote a separate opinion to “note my growing concern with our qualified immunity jurisprudence.”
In a 2018 case, Sotomayor wrote in dissent that the doctrine “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Justice Samuel Alito, the justice most likely to side with law enforcement generally, has been the court’s biggest immunity proponent.
But while Justice Ruth Bader Ginsburg joined that Sotomayor dissent, very little has come out of the rest of the court one way or the other.
5. Where Does it Stand Now?
Petitions have been pending before the Supreme Court—like the police dog bite suit, which has been pending for more than a year—without the justices agreeing to hear any of them, at least not yet.
They could act on these petitions any week now, either to agree to review one or more cases to signal their interest in revisiting the doctrine, or signaling the opposite by declining to review all of them.
Floyd’s death has also sparked congressional action to undo the doctrine, like a bill from Rep. Justin Amash (I-Mich.) that would take it down once and for all.
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