What is qualified immunity?

The murder of George Floyd sparked massive protests across the nation.  Protestors are loudly speaking out against police violence. The issue is deep and longstanding. There are no simple answers or quick fixes. One idea that reformers keep bringing up is to get rid of “qualified immunity.” It sounds confusing so we want to take a moment to break it down.

Criminal Prosecution and Civil Lawsuit for the Same Conduct

Before getting into the details, we should make clear that qualified immunity has nothing to do with criminal law. It only is relevant to civil lawsuits against police officers, police departments, or government agencies in general. Prosecutors have arrested and charged Derek Chauvin and the other police officers in the death of George Floyd. If a jury convicts them then a judge can sentence them as the criminal laws allows. The law does not protect them d from criminal prosecution simply because they were acting as law enforcement officers.

Independent of the criminal prosecution, however, an abuse victim can bring a civil lawsuit. The result of the criminal case is not binding on the civil lawsuit. Although not a police brutality case, the O.J. Simpson case is a well-known example of this. A jury acquitted O.J. in the murder of Nicole Simpson. Nevertheless, her estate later successfully sued him for wrongful death.

The Idea of Qualified Immunity

The problem arises when the defendant in a civil lawsuit  is a police officer acting in the line of duty. The Supreme Court has made it harder to sue these defendants. This is why courts call it  “immunity” – they are immune from lawsuits. However, this immunity is “qualified” – that is, it is not complete. If the police abuse someone, they can still sue, it is just legally harder to win. There are obstacles.

What is the criteria, then, for deciding when a person can sue the police for abuse? According to the Supreme Court, the victim can only win a lawsuit if the police behavior “violated a clearly established statutory or constitutional rights of which a reasonable person would have known.” In other words, the police officer should have known he was violating someone’s civil rights.

A Call for Change

It is highly unlikely that this rule would stop the family of George Floyd from suing Derek Chauvin. From the video, it appears Chauvin’s attack was so heinous that he obviously was violating Floyd’s rights and could not reasonably have thought otherwise.

But activists and reformers are thinking beyond just this particular case. They are thinking about how to make lasting changes. Police departments frequently use qualified immunity to block lawsuits that should have merit. Money certainly isn’t everything, or even the biggest thing. But one way to get change is to make institutions have to think with their pocketbook.

That is why not only are activists speaking out against qualified immunity, but not politicians too. In Congress has recently introduced bill to abolish qualified immunity. Meanwhile, the Supreme Court itself might be reconsidering the doctrine altogether.

Good chance you will be hearing more about qualified immunity in the months to come.

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