What is qualified immunity and how does it affect police and anyone wanting to sue them?

On Monday, the U.S. Supreme Court announced that it would not hear cases that sought to reexamine "qualified immunity,” a doctrine that shields government officials — including police officers — from lawsuits over their conduct.

The decision came after weeks of racial unrest following the death of George Floyd after a Minneapolis police officer knelt on his neck for nearly nine minutes.

Eight cases concerning qualified immunity were before the high court, which declined in an unsigned order to hear any of them. It takes the vote of four justices for the court to agree to review a case.

What is qualified immunity and what does it mean for police officers and the public? Here’s what we know about the doctrine.

What is qualified immunity?

Qualified immunity is a doctrine created by a U.S. Supreme Court ruling that holds that a public official has protection from being sued for actions he or she takes while performing their official duties.

How does it affect police officers, in particular?

The court's reasoning for the doctrine was to offer protection for police officers from frivolous lawsuits and to allow for police mistakes that can come when split-second judgments are required during dangerous situations.

How far does the immunity go?

According to the Supreme Court, the doctrine protects individuals not only from liability for their actions but also keeps them from being sued at all. The immunity, or protection from being sued, extends to public officials even if they violate someone’s constitutional rights.

How did qualified immunity evolve?

Under the Civil Rights Act of 1871, Americans were given the right to sue public officials who violate their legal rights. Under Section 1983, Lawsuits (the section of the code that allows for such suits), a person holding a public office could be held financially accountable for violations of another person’s rights.

In 1967, the Supreme Court introduced qualified immunity in the case of Pierson v. Ray. The court reasoned that police, enforcing the law in good faith, should not face liability for their actions.

In 1982, the court revisited the doctrine to include the “clearly established” test.

According to the ruling, officials cannot be sued as long as their actions did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The current Supreme Court had a chance to consider changes to qualified immunity. At the court’s private conference on June 4, it considered eight petitions to examine the doctrine.

On Monday, the court announced that it was declining to do so. On May 18, the court also declined to hear three qualified immunity cases.

Can a person get around qualified immunity to sue a police officer?

There is a two-part test that a plaintiff would have to meet to be able to sue a police officer. They must:

  • Show evidence that a jury would be likely to find the officer’s use of force would violate the Fourth Amendment.
  • Show that the officer(s) should have known they were violating “clearly established law.”

What does the 4th Amendment say?

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

How likely is it that a person can sue the police?

It is difficult to meet the standards above to bring a suit against a police officer. A plaintiff would have to find a nearly identical case in the same jurisdiction to be allowed to go ahead with a lawsuit.

If they cannot find an identical case, the suit is thrown out.

For instance, George Floyd’s family would have to find a case in the 8th Circuit Court of Appeals that had an officer kneel on the neck of a person who went on to die as a result of the officer’s actions.

How often do police benefit from qualified immunity?

In excessive-force cases from 2005 to 2007, police were favored in 44% of cases, a Reuters investigation found. From 2017 to 2019, police were favored in 57% of cases.

Is Congress doing anything to change qualified immunity?

The Justice in Policing Act is presently making its way through Congress. The act would eliminate qualified immunity for police officers.

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