Should police have qualified immunity?


Fact Box

  • Under 'qualified immunity,' police and other officials are immune from federal civil lawsuits unless their actions violated clearly established legal precedents at the time. 
  • Amid the tumult over police brutality allegations across the country, the U.S. Supreme Court on Monday refused to reexamine the much-criticized, modern-day legal doctrine created by judges that has shielded police and other government officials from lawsuits over their conduct. 
  • The qualified immunity doctrine, as applied to police, initially asks two questions: Did police use excessive force, and if they did, should they have known that their conduct was illegal because it violated a 'clearly established' prior court ruling that barred such conduct?
  • In recent years, legal scholars, judges and justices on all sides of the ideological spectrum have criticized the legal doctrine, arguing that it is not grounded in the proper legal authorities and it too often shields officials from accountability.
  • The protests ignited by the killing of George Floyd have put a spotlight on the legal doctrine of qualified immunity. While qualified immunity is not at issue in the prosecution of former Minneapolis police officer Derek Chauvin and the three other former officers who face criminal charges stemming from Floyd’s death, it is one of many structural factors that make it difficult to hold police officers accountable for wrongdoing.

Stephanie (Yes)

Police officers deserve to be protected under qualified immunity, considering their profession often requires quick thinking and last-minute judgment calls. The last thing they should worry about while on duty is persecution for doing their jobs to the best of their ability. Officers go into situations, not knowing if they will make it home that night. Yet, they must conduct themselves appropriately without 'being hesitant to act when it is most needed.'

Officers' actions on the job are determined by the training they receive, training that's designed to prepare them for a variety of circumstances they may encounter. However, it's impossible to be ready for everything at any given moment, which is why officers require qualified immunity to perform their jobs, as mistakes are inevitable. This is important to remember when civilians criticize the actions of police officers following an incident. Anyone can consider and promote alternative courses of action in hindsight. But when on the job, law enforcement personnel act in ways they determined most suitable while fulfilling their role as a police officer, not a 'legal scholar.' Without qualified immunity, 'judges and juries could second-guess split-second decisions.'

Of course, police officers are not perfect. Those who have acted inappropriately should absolutely be held accountable. Even under qualified immunity, officers are not pardoned if 'they violate a clearly established constitutional right.'

Following recent headlines involving the police, law enforcement has been under intense scrutiny, with some even demanding the defunding of departments entirely. This makes it important now more than ever to stand behind law enforcement as officers make every attempt to keep the public safe.

Katherine (No)

Qualified immunity makes police officers unaccountable for actions that violate people's rights. It should be abandoned as a legal standard because it has no basis in law.

Qualified immunity stems from the Supreme Court's textual reading of Section 1983 in the U.S. code. Section 1983 held all public officials accountable for violating individuals' rights. But in a 1986 ruling, the Supreme Court invented a legal test that created qualified immunity, essentially shielding police from wrongdoing. The Court determined that, unless there was a 'clearly established law' in place that made officers aware their actions were wrong, police should not be prosecuted for their actions. As website Unlawful Shield summarizes, unless 'there is another court case in your jurisdiction where a public official violated another constituent's rights in the exact same way, the state doesn't have to compensate victims for any wrongdoing.'

This doctrine has no textual basis, as Supreme Court Justice Clarence Thomas pointed out in his opinion dissenting from the Court's decision not to grant a petition of certiorari to several qualified immunity cases. He worried that the Court's attitude towards qualified immunity 'appears to stray from the statutory text.'

Qualified immunity allows police who use excessive force to continue to serve. This does not protect communities. It promotes fear and makes people wary of police. So long as bad cops are protected by qualified immunity, knowing which cops follow the laws and which cops disregard them will be impossible. And this makes the jobs of good cops harder.

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