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Policy Summary: In 1967 the United States Supreme Court decided the case Pierson v. Ray which decreed for the first time that police officers had “qualified immunity.” That doctrine states that police officers are immune from civil liability unless they deprive under color of law another person of his or her civil rights. In 1982 the Supreme Court issued an updated interpretation of the “qualified immunity” doctrine in Harlow v. Fitzgerald by stating that now the legal standard is that “government officials…are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.”

On June 4, 2020, Representatives Justin Amash (L-MI) and Ayanna Pressley (D-MA) introduced the Ending Qualified Immunity Act in the U.S. House of Representatives.  The bill seeks to simply do away with the legal doctrine put forth by the U.S. Supreme Court. On June 8, 2020 Senators Kamala Harris (D-CA) and Cory Booker (D-NJ) introduced bill S.3912 which seeks to also eliminate qualified immunity and permit law enforcement officers to be held civilly liable for misconduct while in the performance of their duties.

Additionally in 2020, the Supreme Court had thirteen different petitions before the court that deal with qualified immunity. Many of the petitions had either been rescheduled or distributed for conference on the same day in the future, which indicates that a significant decision on qualified immunity may have been forthcoming. However, the Supreme Court on June 15, 2020 declined to hear the cases although Justice Clarence Thomas issued a brief dissent signaling that he was open to re-examining the doctrine.  LEARN MORE, LEARN MORE

Policy Analysis: In the aftermath of the killings of George Floyd, Breonna Taylor and others and the protests that have erupted across the United States the last month the issue of police reform has been on the minds of countless Americans. Reviving federal oversight of local law enforcement with DOJ consent decrees have been discussed as well as defunding police departments. But only the issue of “qualified immunity” has gotten the attention of all three branches of the federal government.

The issue has become notable because calls for reform of the doctrine have come from people on both the right and the left of the political spectrum. While the Supreme Court surprisingly declined to hear cases during this term two justices have indicated their unease with the doctrine. Justice Clarence Thomas has become an advocate for reforming the doctrine because he sees it as having no roots in common law and is another example of judicial activism. And Justice Sonia Sotomayor sees the doctrine as an absolute shield for police officers to “shoot first and think later.”

The doctrine is controversial in the courts because when the legal standard is applied in civil cases, the bar is nearly impossible for plaintiffs to meet. From a legal standpoint, plaintiffs who have brought police brutality cases against individual officers must show that the officers conduct is against “clearly established statutory or Constitutional” rights. But since there a very few prior cases that match exactly the offensive conduct committed by the officers courts have been reluctant to side with the plaintiffs and their lawsuits almost always fail. The end result of this anomaly in the criminal justice system is that cops are never held accountable for their actions and case law holding police officers accountable which could be used in the future rarely gets decided.

Examples of police officers who have eluded accountability for their actions because of the legal doctrine are numerous. In Jessop v. City of Fresno, police officers stole $225,000 in cash and rare coins while executing a warrant but could not be sued because they were held to be civilly immune for their actions. In West v. Winfield, a woman gave law enforcement permission to search her home for a suspect only to see law enforcement destroy her home with tear gas grenades. She then found out the officers were immune to a civil suit for the destruction they caused. And in Corbitt v. Vickers, which has garnered national headlines and a petition from a number of high – profile professional athletes, police shot a ten – year old boy and his dog even though they posed no threat to the police officer. The police in that case claimed immunity in a civil case against them. These cases show that the qualified immunity doctrine has gone too far and that police officers are manipulating the doctrine to shield themselves from civil liability for illegal and egregious behavior.

The “qualified immunity” doctrine appears to be on the verge of significant reform if not outright elimination. With the doctrine at the forefront of discussion among lawmakers and members of the judiciary it is clear that changes are coming and it will be interesting to see what form those changes will look like. LEARN MORE, LEARN MORE, LEARN MORE

 

Resistance Resources:

American Civil Liberties Union (ACLU) – blog post on the background of “qualified immunity.”

National Police Accountability Project (NPAP) – project’s letter to Congress to eliminate the “qualified immunity” doctrine.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

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