Rumors are surging in the wake of George Floyds death and resulting protests against police violence and racial injustice in the United States. Stay informed. Read our special coverage, contribute to support our mission, and submit any tips or claims you see here.
Viral video of former Minneapolis police officer Derek Chauvin pressing his knee into the neck of George Floyd, a Black man, for nearly nine minutes before his death resulted in widespread outrage and weeks of civil rights protests across the U.S. Amid a groundswell of popular pressure, prosecutors took the unusual step of arresting and charging Chauvin with second-degree murder and also charging three other officers at the scene with aiding and abetting him.
But even if Chauvin is found guilty, attorneys we spoke to who are experts in a legal doctrine called qualified immunity told us it would still be an uphill battle for Floyds family to successfully sue for restitution.
Thats because qualified immunity, though obscure, is a significant legal hurdle for civilians who try to sue police for claims of constitutional violations, such as the Fourth Amendment protection against unlawful search and seizure, when police kill or injure someone. To get past it, plaintiffs in lawsuits have to show that the exact manner in which a police officer violated their rights has been clearly established as wrongful by legal precedent. That means they must be able to point to another court case with circumstances nearly identical to theirs, and in which a court ruled that an officer had violated the Constitution.
This doctrine encourages police to act with impunity because they know there will be no consequences, said Scott Michelman, legal director for the American Civil Liberties Union of Washington, D.C.
Though the immunity has been in place for more than 50 years, opposition to it is growing, with Floyds death driving discussions about police accountability and violence, particularly against the Black community. Protesters at Black Lives Matter rallies have carried signs calling for an end to qualified immunity, as have legislatorsand professional athletes. But when the matter came before the U.S. Supreme Court on June 15, 2020, the high court punted, leaving the issue to Congress.
Nonetheless, on June 19, 2020, the state of Colorado took matters into its own hands, with Gov. Jared Polis signing into law a bill that ends qualified immunity as a defense for violent police officers.
Qualified immunity grants government officials like police officers legal protection from financial liability in civil cases. It was invented out of whole cloth by the U.S. Supreme Court, meaning it represents judicial policy making, Clark Neily, vice president of criminal justice for the Cato Institute, a libertarian think tank, told us, adding that the judicial branch making public policy goes against the Constitution.
The way the Constitution does it, is it allocates responsibility among different branches of government. People who are elected and have to stand for reelection are the ones who should make policy, Neily said. People who have lifetime appointments and serve in a branch of government that the Constitution doesnt give any policy making power to [i.e., the judicial branch], shouldnt because they are not politically accountable. And simply because the Constitution doesnt give them that authority. The Constitution is 100% clear on that.
Writing for the legal website The Appeal, Amir Ali and Emily Clark, the deputy director for the Supreme Court and the appellate program at the MacArthur Justice Center and appellate research specialist at the Center, respectively, trace the history of qualified immunity to 1967, writing that over time, the interpretation of qualified immunity has become more narrow, favoring police:
The Supreme Court invented qualified immunity in 1967, describing it as a modest exception for public officials who had acted in good faith and believed that their conduct was authorized by law. Fifteen years later, in Harlow v. Fitzgerald, the Court drastically expanded the defense. The protection afforded to public officials would no longer turn on whether the official acted in good faith. Instead, even officials who violate peoples rights maliciously will be immune unless the victim can show that his or her right was clearly established. Since the Harlow decision, the Court has made it exceedingly difficult for victims to satisfy this standard. To show that the law is clearly established, the Court has said, a victim must point to a previously decided case that involves the same specific context and particular conduct. Unless the victim can point to a judicial decision that happened to involve the same context and conduct, the officer will be shielded from liability.
The difficulty of meeting this standard, and the dearth of other options for seeking justice, leaves many plaintiffs in such cases with no recourse, even when video evidence would seem to make the case clear.
Qualified immunity has the effect of closing off all avenues of redress for citizens who accuse police of violating their constitutional rights, Neily told us.
This is important because it is extremely rare for police who kill people on duty to be convicted of a crime, according to research. While a database maintained by The Washington Post since 2015 has logged an average of nearly 1,000 fatal police shootings every year, criminologist Philip Stinson determined that between 2005 and 2019, out of 104 state and local law enforcement officers who have been arrested for murder or manslaughter for fatal on-duty shootings since 2005, 36 have been convicted of a crime.
The only time you see a police officer prosecuted criminally is when the thing they did was caught on video or gets picked up by the media, Neily told us by phone. Prosecutors have a massive conflict of interest. They work together. They depend on cops to bring them cases and testify in court. So criminal law is not going to do it.
Police can also conduct internal investigations into an officers behavior, but Neily noted they are ineffective because youre asking police to decide if the police did anything wrong. And they almost always say no.
Lawsuits, then, are the only route citizens can initiate themselves to seek justice. But qualified immunity throws up a hurdle so big, most cases never see their day in court.
In May 2020, Reuters conducted a study in which reporters analyzed 529 federal circuit court opinions published from 2005 through 2019 on appeals of cases in which cops accused of excessive force raised a qualified immunity defense. Reuters concluded:
Our analysis of this data showed the appellate courts growing tendency, influenced by guidance from the Supreme Court, to grant police immunity. More than ever, they are ignoring the question of whether cops have violated a plaintiffs constitutional rights, thereby avoiding establishing a precedent for future cases and making it harder to win cases against the police. The failure to set precedents is particularly challenging for plaintiffs because the data also showed that appellate courts are increasingly requiring a nearly identical case from the past to serve as a precedent that clearly establishes an officers actions as illegal a high standard that again makes it hard to win against the police.
The hardest thing for lawyers to do is try to get their clients to understand how they can never even get to a trial even though the evidence is clear that their rights were violated, said Jeremy Beaver, an Oklahoma-based attorney who represented the family of Johnny Leija. Leija was a 34-year-old man hospitalized for pneumonia. Police were called when Leija became disoriented and tried to leave the hospital to go home. He died of suffocation when responding police officers tackled him and used stun weapons on him.
You have to find a case with exactly the same facts where another court has said this is a violation, or you cant get past qualified immunity, Beaver said. In the case of Leijas family, Beaver told us the case was eventually thrown out because there wasnt another case in which a mentally, physically compromised patient wanted to leave a hospital against medical advice, and had been shot with a taser and died.
On a very basic level, even if youve been wronged and everyone agrees youve been wronged in a very harmful way, you cant have a remedy. Not because of a legislative process or law, but because of a Supreme Court doctrine that says you cant, Beaver continued. There is no deterrent to the police, and the people who have been wronged have no recourse.
In testimony before the U.S. Senate on June 16, 2020, Fraternal Order of Police President Patrick Yoes said that his organization, a lobbying group that represents 330,000 member police officers, is strongly opposed to any legislative effort to end qualified immunity, because in the field, police are often faced with a wide range of split-second decisions.
Every single factual scenario an officer encounters is different and unknown, Yoes said during his testimony. It is extremely difficult for an officer to determine how a legal doctrine will apply to a split-second factual scenario that the officer confronts. Thus, unless there is existing precedent that squarely governs the facts [laid out] before the officer, the reasonable officer needs to be afforded a certain degree of discretion to make split-second decision in situations that could put lives, including their own, at risk. Officers should not be punished for doing so.
According to the legal blog Lawfare, the Supreme Court justified qualified immunity by stating broadly that it gives government officials breathing room to avoid fear of being sued when performing public services, but in regards to police:
Also at the core of the Supreme Courts jurisprudence is the contention that it would be unfair to hold government officials to constitutional rules they were not aware of at the time of the violation. The court first articulated this idea in a pre-Harlow decision, stating that [a] policemans lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Then in Harlow, the court wrote: If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to know that the law forbade conduct not previously identified as unlawful. And a recent case described the focus of qualified immunity as whether the officer had fair notice that her conduct was unlawful.
The phrase qualified immunity was probably unknown to most until the protests of spring 2020. But in a phone interview, Ali told us he is somewhat optimistic that recent increased public awareness and engagement could bring change.
Once people understand what it is, its not hard for them to see it makes very little sense and is in fact quite perverse, Ali, the MacArthur Justice Centers deputy director of the Supreme Court and Appellate Program, told us by phone.
Qualified immunity has opponents from the full spectrum of political ideology, with liberal Supreme Court Justice Sonia Sotomayor and conservative Justice Clarence Thomas voicing opposition to it, and organizations like the libertarian Cato Institute and the NAACP fighting to overturn it in court.
The Supreme Courts decision not to hear a case challenging qualified immunity has left the question to Congress, Ali noted. As protests against institutional racism and police violence swept the country in 2020, both the U.S. House of Representatives and the Senate set upon crafting police-reform legislation.
But U.S. Sen. Tim Scott, R-South Carolina, said any legislation addressing qualified immunity is a poison pill for Republicans, who control the Senate. And thats because the White House has stated the President will not sign a bill that repeals Qualified Immunity, said Sean Smith, a spokesman for Scott, in an email.
I think [President Trump] will reconsider, and I think so will the Republicans on the Hill once they truly understand what were talking about here, Ali told us by phone.
Ali also said that local and state governments can also create their own laws, independent of the federal government, so that qualified immunity is no longer used in defense in cases of alleged police misconduct, like the state of Colorado did.
Ali connected qualified immunity to the death of Floyd, stating he believed the ongoing lack of accountability for police who commit acts of misconduct had created an environment in which they dont view themselves as being accountable for their actions:
If you study qualified immunity cases, you cant help but draw a pretty clear connection to what we all saw in the video tape of Derek Chauvin murdering George Floyd. You can find cases of police officers putting their knees on peoples necks in the absence of a threat. And when people have tried to hold these precursors to Chauvin accountable, they have been kicked out of court, not because anyone thinks the officer acted reasonably or constitutionally, but because the [the court says] the officer is entitled to immunity even if what he did violated the Constitution.
So when you look into the eyes of Derek Chauvin and see that he didnt have a care in the world many observed he had his hands in his pocket, sunglasses peacefully resting on his head as he slowly took the life of George Floyd, the question is, why does this officer clearly think he can get away with murder? Part of the answer to that is that courts through qualified immunity have communicated to officers that they can get away with this. I think we all cant help but be shocked and should be shocked when we see the video. But at the same time I dont think that we can pretend to be surprised.
Read the rest here:
What Is Qualified Immunity and Why Do Some Want To End It? - Snopes.com
- Quinn: Supreme Court should clarify Fourth Amendment rights in the digital age - April 26th, 2014 [April 26th, 2014]
- Fourth amendment | Wex Legal Dictionary / Encyclopedia ... - April 26th, 2014 [April 26th, 2014]
- The Fourth Amendment is destroyed by the Roberts led Supreme Court. - Video - April 26th, 2014 [April 26th, 2014]
- Protections for e-data clear Senate committee - April 27th, 2014 [April 27th, 2014]
- Weighing The Risks Of Warrantless Phone Searches During Arrests - April 29th, 2014 [April 29th, 2014]
- Court may let cops search smartphones - April 29th, 2014 [April 29th, 2014]
- Supreme Court to hear case on police searches of cellphones - April 29th, 2014 [April 29th, 2014]
- Fourth Amendment in the digital age: Supreme Court to decide if police can search cellphones without a warrant - April 30th, 2014 [April 30th, 2014]
- What Scalia knows about illegal searches - April 30th, 2014 [April 30th, 2014]
- Should police be allowed to search your smartphone - Video - April 30th, 2014 [April 30th, 2014]
- The Shaky Legal Foundation of NSA Surveillance on Americans - May 1st, 2014 [May 1st, 2014]
- Pennsylvania Supreme Court rules police don't need warrants to search cars - May 3rd, 2014 [May 3rd, 2014]
- Local police: Updated vehicle-search law still requires probable cause - May 3rd, 2014 [May 3rd, 2014]
- Liberal Supreme Court Justice Comes To The Defense Of Scalia - May 3rd, 2014 [May 3rd, 2014]
- Smartphones and the Fourth Amendment - Video - May 4th, 2014 [May 4th, 2014]
- Fourth Amendment Defined & Explained - Law - May 6th, 2014 [May 6th, 2014]
- I-Team: Do police seek search warrant friendly judges? - May 8th, 2014 [May 8th, 2014]
- Is Big Brother Listening? Applying the Fourth Amendment in an Electronic Age - Video - May 9th, 2014 [May 9th, 2014]
- Magistrate waxes poetic while rejecting Gmail search request - May 10th, 2014 [May 10th, 2014]
- The Fourth Amendment - Video - May 10th, 2014 [May 10th, 2014]
- License reader lawsuit can be heard, appeals court rules - May 15th, 2014 [May 15th, 2014]
- Seize the Rojo - Video - May 16th, 2014 [May 16th, 2014]
- NSA Spying Has a Disproportionate Effect on Immigrants - May 16th, 2014 [May 16th, 2014]
- Motorists sue Aurora, police in 2012 traffic stop after bank robbery - May 18th, 2014 [May 18th, 2014]
- Judge Says NSA Phone Surveillance Likely Unconstitutional - Video - May 21st, 2014 [May 21st, 2014]
- New York Attorney Heath D. Harte Releases a Statement on Fourth Amendment Rights - May 22nd, 2014 [May 22nd, 2014]
- The Fourth Amendment Rights - Video - May 23rd, 2014 [May 23rd, 2014]
- Bangor Area School District teachers vote no to random drug - May 24th, 2014 [May 24th, 2014]
- I Don't Care About The Contitution, Take Your Fourth Amendment And Shove It The Hills Hotel - Video - May 27th, 2014 [May 27th, 2014]
- Lonestar1776 at Illegal Checkpoint 80 Miles Inside Border - Standing UP & Pushing Back! pt 2/2 - Video - August 31st, 2014 [August 31st, 2014]
- Suit charges Daytona Beach's rental inspection program violates civil rights - September 3rd, 2014 [September 3rd, 2014]
- 4th Amendment - Laws.com - September 4th, 2014 [September 4th, 2014]
- YOU CAN ARREST ME NOW (cops refuse, steal phone) - Video - September 7th, 2014 [September 7th, 2014]
- The Feds Explain How They Seized The Silk Road Servers - September 8th, 2014 [September 8th, 2014]
- Volokh Conspiracy: Does obtaining leaked data from a misconfigured website violate the CFAA? - September 9th, 2014 [September 9th, 2014]
- Defence asks judge in NYC to toss out bulk of evidence in Silk Road case as illegally obtained - September 10th, 2014 [September 10th, 2014]
- Family of a mentally ill woman files lawsuit against San Mateo Co. after deadly shooting - September 10th, 2014 [September 10th, 2014]
- Minnesota Supreme Court upholds airport drug case decision - September 12th, 2014 [September 12th, 2014]
- Law Talk - Obamacare Rollout; Fourth Amendment, NSA Spying Stop & Frisk DUI Check Points lta041 - Video - September 12th, 2014 [September 12th, 2014]
- Volokh Conspiracy: The posse comitatus case and changing views of the exclusionary rule - September 15th, 2014 [September 15th, 2014]
- Guest: Why the privacy of a public employees cellphone matters - September 16th, 2014 [September 16th, 2014]
- Volokh Conspiracy: Apples dangerous game - September 19th, 2014 [September 19th, 2014]
- Judge expounds on privacy rights - September 20th, 2014 [September 20th, 2014]
- Great privacy essay: Fourth Amendment Doctrine in the Era of Total Surveillance - September 20th, 2014 [September 20th, 2014]
- The Fourth Amendment By Maison Erdman - Video - September 20th, 2014 [September 20th, 2014]
- Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids - September 22nd, 2014 [September 22nd, 2014]
- The chilling loophole that lets police stop, question and search you for no good reason - September 23rd, 2014 [September 23rd, 2014]
- Pet Owners Look to Muzzle Police Who Shoot Dogs - September 27th, 2014 [September 27th, 2014]
- Volokh Conspiracy: A few thoughts on Heien v. North Carolina - September 29th, 2014 [September 29th, 2014]
- Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland - October 1st, 2014 [October 1st, 2014]
- Volokh Conspiracy: Third Circuit gives narrow reading to exclusionary rule - October 2nd, 2014 [October 2nd, 2014]
- Volokh Conspiracy: Supreme Court takes case on duration of traffic stops - October 3rd, 2014 [October 3rd, 2014]
- Search & Seizure, Racial Bias: The American Law Journal on the Philadelphia CNN-News Affiliate WFMZ Monday, October 6 ... - October 3rd, 2014 [October 3rd, 2014]
- Argument preview: How many brake lights need to be working on your car? - October 3rd, 2014 [October 3rd, 2014]
- The 'Barney Fife Loophole' to the Fourth Amendment - October 3rd, 2014 [October 3rd, 2014]
- Search & Seizure: A New Fourth Amendment for a New Generation? - Promo - Video - October 4th, 2014 [October 4th, 2014]
- Ap Government Fourth Amendment Project - Video - October 4th, 2014 [October 4th, 2014]
- Lubbock Liberty Workshop With Arnold Loewy On The Fourth Amendment - Video - October 5th, 2014 [October 5th, 2014]
- Feds Hacked Silk Road Without A Warrant? Perfectly Legal, Prosecutors Argue - October 7th, 2014 [October 7th, 2014]
- Supreme Court Starts Term with Fourth Amendment Case - October 7th, 2014 [October 7th, 2014]
- Argument analysis: A simple answer to a deceptively simple Fourth Amendment question? - October 9th, 2014 [October 9th, 2014]
- Feds Say That Even If FBI Hacked The Silk Road, Ulbricht's Rights Weren't Violated - October 9th, 2014 [October 9th, 2014]
- Mass Collection of U.S. Phone Records Violates the Fourth Amendment - Video - October 9th, 2014 [October 9th, 2014]
- Leggett sides with civil liberties supporters - October 10th, 2014 [October 10th, 2014]
- Search & Seizure / Car Stops: A 'New' Fourth Amendment for a New Generation? - Video - October 10th, 2014 [October 10th, 2014]
- The Fourth Amendment- The Maininator Period 4 - Video - October 10th, 2014 [October 10th, 2014]
- Judge nukes Ulbricht's complaint about WARRANTLESS FBI Silk Road server raid - October 11th, 2014 [October 11th, 2014]
- Montgomery County will not hold immigrants without probable cause -- Gazette.Net - October 13th, 2014 [October 13th, 2014]
- Debate: Does Mass Phone Data Collection Violate The 4th Amendment? - October 14th, 2014 [October 14th, 2014]
- Does the mass collection of phone records violate the Fourth Amendment? - October 19th, 2014 [October 19th, 2014]
- When Can the Police Search Your Phone and Computer? - October 21st, 2014 [October 21st, 2014]
- Supreme Court to decide if cops can access hotel registries without warrants - October 22nd, 2014 [October 22nd, 2014]
- Third Circuit Allows Evidence from Warrantless GPS Device - October 22nd, 2014 [October 22nd, 2014]
- US court rules in favor of providing officials access to entire email account - October 24th, 2014 [October 24th, 2014]
- EL MONTE POLICE OFFICER VIOLATES ARMY VETERAN'S FOURTH AMENDMENT RIGHT - Video - October 25th, 2014 [October 25th, 2014]
- FBI demands new powers to hack into computers and carry out surveillance - October 30th, 2014 [October 30th, 2014]
- Fourth Amendment (United States Constitution ... - November 4th, 2014 [November 4th, 2014]
- Fourth Amendment - Video - November 4th, 2014 [November 4th, 2014]
- Call Yourself a Hacker and Lose Fourth Amendment Rights - Video - November 5th, 2014 [November 5th, 2014]
- Volokh Conspiracy: Magistrate issues arrest warrants for 17 years but is new to probable cause - November 7th, 2014 [November 7th, 2014]