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Can police kill with impunity? The ‘qualified immunity’ doctrine

by | Jun 4, 2020 | Criminal Defense

After the police killings of George Floyd in Minneapolis and Breonna Taylor in Louisville, protests erupted around the globe. Protestors decried the use of excessive force in these cases and in a long list of others over the previous months, years and decades.

As a society, we try to keep police in check with disciplinary complaints, lawsuits and criminal prosecution, but these methods have proven ineffective. Too many officers continue to act well outside of our laws and values. Why aren’t things changing?

Among many factors is the doctrine of “qualified immunity.” First set into place in the 1970s by the U.S. Supreme Court, the doctrine holds that the police and other government employees are immune from civil rights lawsuits if the illegality of their actions was not “clearly established” at the time of the incident.

Over the years, this doctrine has been read by the courts to virtually exempt police from liability for civil rights abuses. Even when officers commit what seems to be an obvious constitutional violation, it is hard to hold them accountable through a civil rights lawsuit.

When a civil rights lawsuit fails, it is much less likely that the officer will face disciplinary action. All too often, no arrests are made and no charges are brought. This could lead a reasonable officer to assume that their actions were lawful when they were not — or at least that they can act with impunity.

Could officers’ qualified immunity be withdrawn?

The Floyd and Taylor families, among many others from all points on the political spectrum, are asking for changes to the qualified immunity doctrine.

There is a chance that the Supreme Court will hear a qualified immunity case this year; there are several appeals that could be taken up. Groups including the libertarian Reason Foundation, the conservative Cato Institute and the ACLU have all filed briefs urging the high court to revise this pernicious doctrine.

At the same time, members of Congress are attempting to change the doctrine through legislation. The doctrine of qualified immunity was created by judges, not legislation. It is not constitutionally mandated so it could certainly be abolished or restricted by legislators at the state or national level. 

In the House, Libertarian Representative Justin Amash has introduced a bill called the “Ending Qualified Immunity Act,” and Democratic Representative Ilhan Omar is backing the bill.

In the Senate, Democratic Senators Cory Booker and Kamala Harris are planning to introduce a bill that might bring more accountability to policing, create a national database of use-of-force incidents, improve police training, ban choke holds, and make other changes. The Congressional Black Caucus, along with the Asian Pacific and Native American caucuses, pledged support for the Senate proposal.

The events leading to these protests clearly demonstrate that police tactics must change. Police reformers have tried persuasion with little success. Now is the time to end the qualified immunity doctrine so that meaningful change can be achieved through litigation.

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