Qualified Immunity

The Supreme Court Has a Chance To End Qualified Immunity and Prevent Cases Like George Floyd's

The Supreme Court could announce as early as Monday that it's revisiting qualified immunity, a doctrine that shields rotten cops from civil rights lawsuits.

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The killing of George Floyd by a Minneapolis police officer on Monday has reignited calls for national reforms to policing, including ending qualified immunity, a legal doctrine that civil liberties groups say has become a shield for grotesque police misconduct.

While some of the actions that criminal justice advocates are calling for—such as national use-of-force standards and limiting the power of police unions—would require large amounts of political capital, the issue of qualified immunity happens to be before the Supreme Court right now.

The Supreme Court could announce as early as Monday that it's taking up several cases involving the doctrine. The Court considered 13 different petitions for cases involving qualified immunity at a conference hearing yesterday.

Qualified immunity, created by the Supreme Court in the 1970s, shields police and other government officials from liability in civil rights lawsuits when the illegality of their actions was not "clearly established" at the time of the offense.

Attorneys representing the families of Floyd, Ahmaud Arbery, and Breonna Taylor called for policing reforms—including rolling back qualified immunity—at a press conference today.

"The standard is far too high…for civil rights accountability for law enforcement officers," attorney Lee Merritt said. He continued:

"We need legislation that specifically goes after qualified immunity and the additional protections offered to law enforcement officers…We want to make sure that the laws from a federal level, number one, that these cases are no longer handled solely locally, but that the federal government will be asked to come in in each of these cases or these states will be denied federal funds."

The petitions before the Supreme Court have attracted amicus briefs from a notable range of groups, including the Reason Foundation (the nonprofit that publishes this website), the Cato Institute, and the American Civil Liberties Union (ACLU).

While it may seem like George Floyd's right to not be choked to death by a police officer would be rather obvious, the fuzzy phrase "clearly established" has evolved over time to become a pedantic and unforgiving standard. Plaintiffs are often required to go fishing for cases that match their exact circumstances, lest their lawsuit get tossed. Last year, a 9th Circuit Court of Appeals panel granted qualified immunity to an officer who, without warning, shot a 15-year-old holding an airsoft gun. 

"Under the circumstances, a rational finder of fact could find that [Officer Michael] Gutierrez's use of deadly force shocked the conscience and was unconstitutional under the Fourteenth Amendment," the panel wrote. But "because no analogous case existed at the time of the shooting, the district court erred by denying Gutierrez qualified immunity for this claim."

As U.S. Circuit Judge Don Willett wrote in a 2018 decision, "to some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly."

And in many cases, courts don't even rule on whether the alleged conduct would have been unconstitutional, taking a pass on one of their core duties. Last September, the 9th Circuit ruled that Fresno, California, police officers accused of stealing more than $225,000 while executing a search warrant were protected by qualified immunity, but it also declined to say whether the alleged theft violated the Constitution.

Between the farcical standard that many courts enforce on plaintiffs to find identical cases, and those same courts' refusal to establish new case law, the doctrine of qualified immunity is a formidable barrier to civil rights lawsuits against police. In a Reuters analysis of 252 federal appellate opinions from 2015 to 2019 where law enforcement defendants claimed qualified immunity, courts ruled in the police's favor in 57 percent of the cases.

"Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment," Supreme Court Justice Sonia Sotomayor wrote in a 2018 dissent. "It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished."

But the Supreme Court is, to understate it, reluctant to second-guess police. As the Cato Institute's Clark Neilly noted this week, the Court "recently let stand an Eighth Circuit decision dismissing, on qualified immunity grounds, a Section 1983 case against a Nebraska officer who picked up a five-​foot-tall, unarmed woman clad only in a bathing suit and drove her head-​first into the ground, knocking her unconscious and breaking her collarbone—not because it was lawful for him to do so, but rather because there happened to be no case on point with precisely those facts."

Ending qualified immunity wouldn't end police brutality, but it would put departments and individual officers on notice that they can no longer brazenly harm and kill people without consequences.

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  1. //The Supreme Court Has a Chance To End Qualified Immunity and Prevent Cases Like George Floyd’s//

    How would a ruling by the Supreme Court on qualified immunity have prevented the death of George Floyd?

    1. I’m trying to figure that out myself.

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      2. Because once you write down that something is prohibited on a piece of paper it magically stops happening. Sometimes I wonder how anything functioned before someone decided to codify gravity.

    2. Well if broken windows theory is to be believed then by allowing those broken windows in the police department to go unchecked, the cops are encourage to commit more serious crimes. Bit of a stretch and I don’t buy into bwt in its entirety and there is of course no way of really knowing whether or not this contributed to Floyd’s death. I didn’t like the headline either though.

      1. Those officers had all committed flagrant abuse in the past. Had they been properly punished then, it would not have gotten to the point where a cop brazenly puts a knee on the neck of a man already cuffed on the ground and his cop buddies ignore bystanders pleas that he was already subdued. This wasn’t “lack of training”. This was lack of any kind of consequences.

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    3. The idea is of course that law enforcement officers if they had actual skin in the game wouldn’t dare be so brazen to cause the death of someone in that manner regardless of what policy states they are free to do. Personal liability for your actions can do wonders to curb bad acts. Of course there will still be extrajudicial killings but it’s likely they would be fewer.

      Look at what NYPD officers did after one of their own was kind of held accountable for Eric Garner’s death. They made a show of slowing down their usual overpolicing.

      1. And crime rates still went down.

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    4. It wouldn’t have but I think we all believe you’re smarter than that, maybe.

    5. ….ummm….. because if officer dipshit thought he might actually go to jail for “accidentally” killing someone, he might think twice? You gotta try a little…

      1. QI is only about civil lawsuits.

        1. My bad. Replace “go to jail” with “lose their pension”?

        2. In theory. In actual practice, no.

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        3. This is the key point and I think is missed by many in the conversation. The officers involved in Mr. Floyds death will all be punished criminally and will lose their jobs and pensions, however their families won’t be sued into poverty.

          One, I’m not sure that knowing that would dramatically change behavior.
          Two, we live in a society that loves to sue, if we eliminated QI every municipality with a police force would have to create a massive fund to defend these civil suits (you know the union will negotiate that in).
          Zero problems solved, Mr. Floyds family gets 100 million, he’s still deceased and the cities police department is smaller and less effective. Or the schools have less for books, or the parks close. Great.

          1. You definitely raise some valid points. The officers should receive fair trials, and their families should not be punished under some misguided notion of Sippenhaft. It ‘s also true that our society is often overly litigious, but I guess it beats a return to dueling!

            At any rate, government should lead by example and face the same penalties as any regular citizen. They should know the law better than anyone, so they have even less excuse when they violate it. Repeated (and often preventable) ‘mistakes’ should be costly. Also, smaller and less effective departments might not be a bad thing. How many of these officers are really ‘necessary’ and actually serve their communities, and how many primarily exist to provide revenue via extortion of the citizenry?

            Police do deal with life and death, so I think the idea of professional licensing and perhaps mandating malpractice insurance, just like doctors and lawyers, is an idea with some merit. Also, I believe the Supreme Court has ruled that LEOs have no duty to risk their lives, so while there are many flaws with the concept, maybe reversing that to legally require them to at least acknowledge that they must hazard their own lives as a prerequisite of the job would weed out those more bent on being enforcers and less disinclined toward actual public service.

            1. “It ‘s also true that our society is often overly litigious, but I guess it beats a return to dueling!”

              I’m not sure that’s accurate.

    6. If the police had any reason to fear the people, they would hesitate to do something beyond the bounds of reason.

      The other cops could have and should have gone over and said “dude, get off of him, this is over the top”.

      The cop who arrested the CNN crew said he was “just following orders”.

      Corrupt police know that the blue line will shield them from criminal punishment and qualified immunity from civil punishment. Qualified immunity also shields police departments for not punishing the officers administratively. In fact, the most extraordinary thing in this situation was that the unions and the blue line are not protecting the officers involved. Thankfully, this shows that there is a line they will not cross. However, that line is far, FAR too far down the path, and we need to use the courts and laws to pull it back.

    7. its simple really… by forbidding our right to hold that individual officer PERSONALLY accountable, you remove their legal responsibility to not violate your constitutional rights, and when you remove his legal responsibility you quickly remove the ethical and moral responsibly he might question in a moment of fear or panic or even rage. What’s worse is that qualified immunity doesn’t just take away his responsibility to do the right thing, it also removes it from those officers around him that would naturally be afraid to be an accomplice to murder or any crime.

      In normal circumstances, with average citizens, we would naturally jump in and stop him in a similar instance, because we operate with the natural weight of our justice system on our shoulders. They need to understand that weight.

      So it stops this situation by both quickly allowing civil suits against officers for much lesser violations of civil liberties… long before we get to the one where he is taking someone’s life (he has 19 serious complaints against him) as well as pressuring those around him to stop him when they see a violation of a citizen’s liberties that they now understand they can be legally held culpable.

    8. Group behaviour evolves based on the environment which dictates what they can get away with.

      Removal of qualified immunity changes that environment.

      Police as a group need to learn through external forces that they can’t get away with murder.

      When they do, people’s lives will be saved.

    9. It coul
      d prevent future cases like Floyd’s.
      The headline does not say it could end past cases.
      Don’t be obtuse.

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    10. It’s the same as asking if prison is a deterrent to crime. Seems pretty obvious, but obviously it’s not that obvious if you have to ask.

  2. I can’t hold my breathe until Monday!

  3. Ending qualified immunity simply doesn’t go far enough. Even without QI protection, cops won’t be worried about lawsuits so long as they know the taxpayers will pick up the tab if they lose. They will only start cleaning up their acts when they become personally liable for their actions the way physicians are. Let them carry malpractice insurance like doctors do. The bad actors who aren’t worth covering will have to find another line of work. As a doctor, I have to disclose to every potential employer every action that’s ever been filed against me, regardless of whether or not I won — or even if the case was dismissed outright. (Thankfully, I’m still new enough that I’ve never been sued.) It should be the same for law enforcement officers. Though who knows: as perverse as the incentives are in the criminal justice industry, it might become a badge of honor to have a long list of lawsuits on your record. Still, liability insurance companies only have so much patience. Sooner or later you become uninsurable.

    1. What’s to stop them from just having the unions mandate paying for officers personal liability insurance as terms of employment. Guess who will still end up paying for it?

      1. If private insurers refuse to issue a policy for an officer (completely uninsurable) then is not much the union could do about that. Though with insurance companies being regulated by state insurance commissioners there’s still plenty of bullshit they could try to pull behind the scenes.

      2. Get rid of the unions.

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      3. Abolish police unions. They’re not auto assembly workers. They are government employees.

    2. Insurance companies only cover so much. The norm is 1-2 million for a business. Wrongful death suits can be in the multi million dollar range. Believe me, cops will change their MO when they know their life savings, homes, and vehicles are on the line if they fuck up.

      1. Inner cities already have big trouble finding good cops. Adding more liability will only make the applicant pool even worse.

        1. Pay more. Isn’t everyone here familiar with supply and demand?

        2. Often enough, in poorer neighborhoods, generally, regardless of ethnicity or color, the cops do tend to be a lot meaner. There’s no excuse for it, but unfortunately, that’s how it is. The only way to change that is to change society, as a whole.

      2. even without QI, and insurance, as long as the union is there, individual officers will get indemnified out of the local government budget.

        1. Up to a point.
          At some point insurance co’s will not insure such cops.

      3. With a healthy deductible . . . all those thing would be on the line.

        Sounds like a good solution to me.

    3. “As a doctor, I have to disclose to every potential employer every action that’s ever been filed against me, regardless of whether or not I won — or even if the case was dismissed outright.”

      Shit I have to do something close to that as a bloody truck driver.

  4. I wish articles like these would reference past articles in Reason Magazine that addressed issues such as this one. Haven’t libertarians been in favor of ending government immunity for decades? Maybe it hasn’t gotten much traction because way too many libertarians consider it a badge of honor to continue to support Republicans and denigrate the Libertarian Party. Perhaps if all of them had been voting Libertarian all these years, the other parties would have noticed growing vote totals and done something to address the issue? But, no, keep voting for the other parties and they’ll just assume you too support the statist protection platforms they keep trotting out every election year.
    If you’re tired of wearing masks, why are you masking your real political views when voting?

    1. The simple answer would be is that they don’t want to wait their vote, which actually makes them not Libertarian.

      1. waist their vote

      2. Damn it! I mean waste.

        1. It’s pretty much wasted anyway.

      3. Your math is not perfect. While England and elsewhere were recognizing that women had individual rights, Dixiecrats sought to legally lynch birth control physicians. The 1972 LP platform was only allowed to run its writ in a few states, but with less than a ten thousanth of half the vote total, the LP platform protecting doctors and women from lynch mobs was copied into Roe v Wade and the lead Dixiecrat was soon nullified by the very initiation of force he espoused. Every LP spoiler vote packs about 20 X more law-changing clout than a bootlicking endorsement of looter policies.

    2. The Kleptocracy is keenly aware of the growing LP vote share. At 80% per year the vote totals follow a logistical replacement curve. These curves track how cassettes replaced vinyl LPs, and were replaced by CDs. They saw this when other looters (Populist Party) and coercive racial collectivists (Klan, Dixiecrats, Prohibition Party) gained spoiler vote share. They worsened their platforms, laws and Constitution by adding violence. Now they have to improve them by replacing the violence with freedom. Voting LP definitely changes bad laws.–libertariantranslator

  5. The Supreme Court could announce as early as Monday that it’s taking up several cases involving the doctrine.

    Or, more probably, it will announce as early as Monday that it’s not taking up several cases involving the doctrine.

  6. …when the illegality of their actions was not “clearly established” at the time of the offense.

    Created out of thin air and absurdly applied.

  7. Oh please the police state created and helped along by democrats does not care about qualified immunity.

    They want one thing to be in charge and to force us to our knees and pray to their left wing goddess.

    1. You think that Republicans don’t help the police state? And you think that the police don’t care about qualified immunity? How can you get so much wrong in one sentence?

      1. Republicans do nothing but cover for the police state, even though they claim to want a smaller government. If you carry and can defend yourself, then we can police ourselves and have private police that we can fire if they abuse powers.

        Both sides are authoritarian, as long as it’s THEIR rules you are following.

    2. ‘Limited government conservatism’ in action:

      President Trump Fully Restores Military Surplus Transfers to Police.

      https://duckduckgo.com/?t=ffab&q=trump+military+surplus+to+police&atb=v219-6lm&ia=news

      The Left/Democrats have certainly done more than their fair share of expanding the police state, but the Republicans are just as bad (if not worse, solely because of the empty ‘limited government’ and ‘liberty’ rhetoric.) Republicans gave us the Drug War and were the architects of the War on Terror, too. Those are merely two examples of programs that have hastened the destruction of our Constitutional Republic. There are many, many more but you can do your own research if so inclined.

      The hyper-partisan nonsense has gotten so looney, that I mean you no offense when I tell you I honestly can’t tell if you’re are a troll account or not. If you are, well played!

  8. Complete elimination of qualified immunity would expose even the Mother Theresa of police officers. Leaving qualified immunity as is would be a very bad decision and we will be doomed to future instances of police officer brutality going unpunished.

    SCOTUS badly needs to clarify qualified immunity to remove the fuzziness to hopefully remove the abuse of the statute that has been occurring. Basically qualified immunity needs to be scaled back and require a much higher bar to be granted immunity.

    Police officers are necessary and there are instances when people involved would take offense and claim brutality when there really isn’t any brutality. Likewise there are times when the brutality is very real and as qualified immunity currently stands the offending police officer has a high probability of getting off or getting just a slap on the wrist.

    Of course if people or groups that brought forward frivolous lawsuits were penalized then limited qualified immunity would not be necessary.

    1. “SCOTUS badly needs to clarify qualified immunity…”

      No, they need to destroy it and make ALL forms of immunity disappear.

      1. But Twitter won’t like that

      2. That would run into problems way down in the 14th Amendment. Remember Lysander Spooner calling attention to “shall not be questioned”? The 14th includes some rights protection, but package-dealed into the fien print is absolute immunity for looting by agents of the political state. Reread “No Treason,” or better yet, record it as a podcast people can download and listen to. Some might even work up the courage to vote libertarian.

    2. All civil lawsuits should be loser pays.

  9. *ALL forms of immunity need destroyed, not just qualified. Prosecutors hide behind full immunity.

    *Implied consent needs destroyed.

    *Full jury nullification needs implemented.

  10. sarc’s solution: “term limits” for police officers. The longer someone works in that job, the more callous they become. Limit employment for four or five years. Then make them find a respectable job, like washing dishes.

  11. …when the illegality of their actions was not “clearly established” at the time of the offense.
    Isn’t assault with bodily harm illegal?

  12. Look at the photo at the top of the article. Those metal posts were not there before. Technology advanced from horses to automobiles while the Supreme Court increasingly became a puppet shielding conscription, undeclared wars, murder of civilians, protecting killers with badges from facing indictments and trials. Those metal posts are there to stop victims from personally seeking redress or justice.

  13. Removing QI only allows more lawyers to enrich themselves every time a questionable act occurs. You improve the quality of police by hiring better (and firing a few); you can’t hire better people by removing immunity from innocent mistakes. What SCOTUS should do is to remove immunity for obvious misconduct.

  14. Isn’t this immunity similar to that enjoyed in the corporate world by executives whose personal wealth is shielded in the event of bankruptcy or lawsuits etc? And wouldn’t the removal of immunity affect politicians and supreme court judges as well as police officers? I’d be surprised if there were any movement here. It sounds greatly out of character.

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