Ending Qualified Immunity
As the news of protests following the killing of George Floyd and other black Americans at the hands of police officers, we have been hearing the phrase “qualified immunity” being talked about more often. It’s a phrase that could be at the center of the debate surrounding police brutality as communities and lawmakers have begun seeking better ways to help end police violence against members of minorities such as black and Hispanic-Americans.
What Is Qualified Immunity?
Qualified immunity refers to the immunity of civil liability for a public official who is performing a discretionary function, as long as the conduct does not violate clearly established constitutional or statutory rights (Black’s Law Dictionary, Tenth Edition).
In plain English, this means that police officers are immune from being sued for any injuries, damages, or death that they may cause in the course of their duties as police officers, just as long as they haven’t violated a clearly established right.
Although qualified immunity differs from sovereign immunity, which prevents state entities such as public schools for being sued for negligence in most circumstances, they both share a similar trait in that it is almost impossible for victims to sue for damages.
How Did Police Officers Obtain Qualified Immunity?
During the reconstruction period following the civil war, Congress passed a series of bills known as the “Enforcement Acts” to help enforce the recently ratified 14th and 15th amendments which gave newly freed slaves equal protection under the law and the right to vote. The Third Enforcement Act, passed in 1871, made it possible for ordinary citizens to file lawsuits against the government for violating their constitutional rights.
The codified law, today, reads:
42 U.S.C Sec. 1983 Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Throughout the civil rights era of the ’60s, citizens successfully used this law to file lawsuits against the government whenever their constitutional rights were violated. However, the concept of “qualified immunity” didn’t actually exist until the United States Supreme Court decided Pierson v Ray in 1967 where it was discussed whether a police officer could be granted some type of immunity if not “absolute” within the scope of their actions. Fifteen years later, in Harlow v Fitzgerald, the Supreme Court ruled that government officials, such as police officers, are entitled to qualified immunity, granted if their actions do not clearly violate clearly established constitutional rights.
Why Should We End Qualified Immunity For Police Officers?
No matter what end of the political spectrum you may identify yourself as, there is certainly a mountain of empirical evidence and countless examples that demonstrate that there is an issue of police officers abusing their power, passively and violently, against minorities in our country.
Although a civil suit is possible against police officers that violate your civil rights, qualified immunity has made it insurmountably difficult, as these rights need to have been “clearly established” meaning that the Supreme Court has ruled against an officer previously for the exact same type of violation.
Ending qualified immunity for police officers would allow victims of these abuses of power to have another avenue of justice that may not be afforded to them through the criminal process. Litigation against bad actors in any sect of our society means making sure that they are held accountable for their actions and aren’t given a free pass to continue to inflict harm or damages on others.
As Americans, we should be acting on our 7th amendment rights to seek justice through our civil courts. Doctrines like qualified immunity are an affront to our constitutional rights and make tyrants out of authorities who wish to do whatever they please without impunity.
It’s time for us to take our liberty seriously and finally end qualified immunity once and for all.
Ending Qualified Immunity Act
A bill has been recently introduced into congress by Congressman Justin Amash (L-Michigan) titled the Ending Qualified Immunity Act (HR 7085) which would make civil courts accessible to victims of police brutality and violence.
When Amash introduced the bill, he stated:
This week, I am introducing the Ending Qualified Immunity Act to eliminate qualified immunity and restore Americans’ ability to obtain relief when police officers violate their constitutionally secured rights. The brutal killing of George Floyd by Minneapolis police is merely the latest in a long line of incidents of egregious police misconduct. This pattern continues because police are legally, politically, and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve. That must change so that these incidents of brutality stop happening.
Currently, the bill has 39 cosponsors.
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