Introduction

Weeks ago, on April the 20th, Derek Chauvin was found guilty of all three charges for the murder of George Floyd in June 2020. It has been a long time since a police officer was accountable for police misconduct, partly because of Qualified Immunity. The murder of Geroge Floyd put the doctrine of qualified immunity in the spotlight, something that no similar incident was able to do. While it should be noted that Chauvin was rightfully found guilty, there are steps needed to be taken to avoid another George Floyd incident. In this journal, I will address the facts of Qualified Immunity and whether or not Qualified Immunity should be discarded.

Qualified Immunity

Qualified Immunity is a judicial doctrine that protects government officials from being held financially and personally liable for constitutional violations so long as there is no obvious violation of the “clearly established” law. The doctrine was first established in Pierson v. Ray (1967), at the height of the Civil Rights Era. The court justified qualified immunity by stating that police officers have to choose between “being charged with dereliction of duty if he does not arrest when he has probable cause or being punished with damages if he does.” In other words, so long as the police officers are acting in “good faith,” then police officers should not face accountability. Fifteen years later, in Harlow v. Fitzgerald (1982), the good faith requirement was completely discarded to the point that even bad-faith actors, those who committed egregious constitutional violations, are protected by Qualified Immunity. Now fast forward to today in the aftermath of these two cases, the Supreme and the Circuit Courts have made it difficult for plaintiffs to prove a violation of the 4th amendment. Now, I will address whether or not Qualified Immunity can ever be discarded?

Can Qualified Immunity be discarded?

Recently, there have been Supreme Court Judges who have been critical of qualified immunity. On the liberal side of the Supreme Court, Sotomayor has stated that Qualified immunity sends “a message to the public that unreasonable conduct goes unpunished.” However, it is not just judges on the liberal side that are seeing the flaws; some judges tend to side with law enforcement over suspected fourth amendment cases. Justice Clarence Thomas has stated in Ziglar v. Abbasi that the Supreme Court should reconsider “its jurisprudence and that it should mirror from common law.” As judges are coming out against qualified immunity, would the supreme court scrap qualify immunity? Realistically, I do not believe that the current Supreme Court would scrap qualified immunity because the last appointed judges by former President Trump had consistently sided with law enforcement when they were in the federal court's appeal. A month after Floyd was murdered, the Supreme Court refused to hear nine petitions regarding qualified immunity; one of them was, you guessed it, Justice Kavanaugh. But does that mean that we should feel hopeless? No, we should not. One reason is that legislators in Colorado, Connecticut, and New Mexico have abolished qualified immunity. Also, this year, the House of Representatives passed the George Floyd Justice in Policing Act (H.R. 1280) which makes it easier for plaintiffs to sue officers who engage in egregious acts of the fourth amendment. However, this bill will most likely be dead on arrival, as it does not have more than 60 votes to make this bill into law. Overall, qualified immunity may be scrapped, but it will take time for it to happen.

Sources:

1. Schwartz, Joanna C. “How Qualified Immunity Fails.” Yalelawjournal.org, 2017, www.yalelawjournal.org/article/how-qualified-immunity-fails. Accessed 15 May 2021

2. ‌“What Is Qualified Immunity, and What Does It Have to Do with Police Reform?” Lawfare, 6 June 2020, www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform. Accessed 15 May 2021.

3. Chung, Andrew. “Analysis: U.S. Supreme Court Nominee Barrett Often Rules for Police in Excessive Force Cases.” The U.S., 25 Oct. 2020, www.reuters.com/article/us-usa-court-barrett-police-analysis/analysis-u-s-supreme-court-nominee-barrett-often-rules-for-police-in-excessive-force-cases-idUSKBN27A0C1. Accessed 15 May 2021.

4. “Supreme Court Refuses to Hear Qualified Immunity and Gun Cases > National Conference of State Legislatures.” Ncsl.org, 2020, www.ncsl.org/blog/2020/06/17/supreme-court-refuses-to-hear-qualified-immunity-and-gun-cases.aspx. Accessed 15 May 2021.

5. “Some States Moving on ‘Qualified Immunity’ Reform - the Bulwark.” The Bulwark, 30 Mar. 2021, thebulwark.com/some-states-moving-on-qualified-immunity-reform. Accessed 15 May 2021.

6. Sibilla, Nick. “House Passes New Bill to Abolish Qualified Immunity for Police.” Forbes, 4 Mar. 2021, www.forbes.com/sites/nicksibilla/2021/03/04/house-passes-new-bill-to-abolish-qualified-immunity-for-police/?sh=4045545e2daf. Accessed 15 May 2021.

Written by Brandon Blanco, Political Chair. The views expressed in the journal are their own and not the view of The La Raza Pre Law.