What is qualified immunity? Here’s how it affects lawsuits against police officers
As protests against police brutality and the death of George Floyd, an unarmed black man who died in police custody in Minneapolis, enter their second week, lawmakers are revisiting “qualified immunity” and how it impacts lawsuits against police officers.
Qualified immunity, a doctrine developed by the Supreme Court in the late 1960s, is used to determine if lawsuits against police officers go to trial if they meet two criteria: if the officers used excessive force that violated the Fourth Amendment and if they knew they were violating a “clearly established” prior court ruling, according to NPR.
The two-part test was applied by appellate courts in 252 cases from 2015 to 2019 and in more than half, immunity was granted to the police, according to an analysis by Reuters. The Supreme Court has allowed courts to skip the first part of the test since 2009, according to the outlet.
When excessive-force cases against the police went to trial, the court favored the police 57% of the time from 2017 to 2019, according to Reuters. From 2005 to 2007, the court went with the police in 44% of cases.
Qualified immunity allowed the courts to block cases if there hasn’t been “a prior case similar enough to put the officer on notice that their conduct violates constitutional principles,” Bloomberg Law reported.
The Justice in Policing Act of 2020, a bill co-sponsored by Sen. Cory Booker of New Jersey, would reform qualified immunity.
“Qualified immunity is something that has evolved over time. It’s not written into any law,” Booker told NPR. “But our highest courts in the land have decided that police officers are immune from civil cases, unless there’s been specifically in the past a case of generally the exact circumstances that has led towards a successful action. ... It creates this bar towards civil action against a police officer for violating your civil rights.”
White House Press Secretary Kayleigh McEnany said during a Monday press briefing that reforming qualified immunity is a “non-starter,” Forbes reported. McEnany referenced Attorney General William Barr’s comments on Sunday, saying that getting rid of immunity would lead to police “pulling back” and police aren’t “systematically racist,” according to the outlet.
Supreme Court justices will soon review eight cases involving qualified immunity, ABC News reported.
Judges on both sides of the political aisle have expressed skepticism on qualified immunity.
Justice Sonia Sotomayor said in a 2018 dissenting opinion joined by Justice Ruth Bader Ginsburg that the doctrine was becoming an “absolute shield” for police by “gutting the deterrent effect of the Fourth Amendment,” ABC News reported. “It tells officers that they can shoot first and think later,” Sotomayor wrote.
Justice Clarence Thomas wrote in 2017: “Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.”
This story was originally published June 8, 2020 at 12:09 PM with the headline "What is qualified immunity? Here’s how it affects lawsuits against police officers."