Justice Begins When ‘Qualified Immunity’ Ends
Article from For Liberty by Norm Leahy.
The police officer who pressed his knee into George Floyd’s neck has been arrested and charged with 3rd-degree murder, but it’s just the first step in a long legal battle that could result in even greater outrage.
The reason is a court-manufactured doctrine called “qualified immunity,” and as Institute for Justice lawyers Patrick Jaicomo and Anya Bidwell write, this legal shield could allow Floyd’s accused killer go free:
…when Floyd’s family goes to court to hold the officers liable for their actions, a judge in Minnesota may very well dismiss their claims. Not because the officers didn’t do anything wrong, but because there isn’t a case from the 8th Circuit U.S. Court of Appeals or the Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for nearly nine minutes until he loses consciousness and then dies.
And such a specific case is what Floyd’s family must provide to overcome a legal doctrine called “qualified immunity” that shields police and all other government officials from accountability for their illegal and unconstitutional acts.
Jaicomo and Anya write that in practice, qualified immunity is “nearly impossible to overcome” because to do so, a victim must:
…identify an earlier decision by the Supreme Court, or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the official is immune.
In short, qualified immunity destroys accountability. The results are tragic and horrifying.
But the Supreme Court has an opportunity to correct this terrible legal wrong:
On Monday, the Supreme Court will announce whether it will hear some of those cases and reconsider the doctrine of qualified immunity. If it does, there is hope that the court will revoke the license to lawless conduct it granted government officials in 1982. If it does not, lack of accountability will continue to rule the day and the promises of the Bill of Rights will be a matter of judicial grace, rather than constitutional right.
Image Credit: By St. Louis Circuit Attorney’s Office (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons