Abolishing Qualified Immunity: Holding police officers accountable

June 18, 2020


3 min read

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What's going on here?

The murder of George Floyd on 25 May 2020 at the hands of a US law enforcement officer and the subsequent protests have encouraged scrutiny of “qualified immunity”. This doctrine has given legal impunity to many police officers involved in police brutality in the US.

What does this mean?

Since the Civil Rights Act was passed by Congress in 1871, individuals have been able to sue State and local officers for infringing on their constitutional rights. However, in 1982 the US Supreme Court ruled that government officials, such as law enforcement officers, were entitled to qualified immunity from civil-rights lawsuits if their actions did not violate “clearly established“ rights. This means that they cannot be held liable for constitutional violations.

To determine whether a defendant is entitled to qualified immunity, a two-step inquiry is made. Courts must first determine whether the alleged facts show that the defendant has violated a constitutional right. After this has been confirmed, they must ascertain that their actions have not violated “clearly established” rights; i.e. that the illegality of the actions in question have not previously been established in case law.

What's the big picture effect?

Whilst this doctrine seems harmless on paper, it is problematic in practice as courts have been strict when applying a precedent yet inconsistent when following the two-step inquiry. 

The facts of the plaintiff’s case must be near-identical to those of a precedent from previous cases in order for the court to rule that “clearly established” rights have been violated. If this is not satisfied, the plaintiff will not be able to rely on this in court. In Baxter v Bracey, the small difference in the position of the plaintiff’s hands led to the case being dropped as the precedent was deemed insufficient.

Even if the court rules that a law enforcement officer has violated a constitutional right (Step One), if there is no precedent to rely on (Step Two), the officer will be granted qualified immunity. If a law enforcement officer then commits a violation of the same nature and circumstance, as the court has ruled that the defendant in the previous case violated a “clearly established” constitutional right, there is a precedent. As a result the defendant will not be granted qualified immunity and the plaintiff can take the case to court.

However, in 2009, the Supreme Court informed lower courts that they could use their discretion to address the steps in the previously mandatory two-step framework in either order, or even skip the first step. In novel cases where difficult constitutional rights questions are raised, courts are able to skip straight to determining whether the question has been “clearly established” in case law.

Judges are thus able to dispose of cases on the grounds of qualified immunity without ruling on whether any rights have been violated, and the law does not become clearly established going forward. This practice undermines the plaintiffs’ ability to access justice and allows rogue government officials to act unlawfully with legal impunity. In a study led by CNBC, 99% of law enforcement officers involved in killings from 2013-2019 were not charged. The lack of accountability for these crimes has caused outrage in the USA and around the world.

The recent protests have been a catalyst for change. On 1 June 2020, more than 400 civil rights organisations addressed a letter to Congress highlighting the need for police reform, including the abolition of qualified immunity. Congressman Justin Amash has proposed the introduction of the Ending Qualified Immunity Act. Whilst the Act has garnered support from an extensive list of democratic legislators, it is lacking in support from the Republican party. Given the Republican majority in the House of Representatives and the Senate, there are doubts whether the act will be passed.

Despite these doubts, many are certain that the abolition of qualified immunity would remove an arbitrary barrier preventing juries from hearing and deciding cases on their merits, making it more difficult for government officials to evade justice.

Report written by Emily Noble

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