Qualified immunity, explained

Channel: Washington Post
Published: 07/30/2020

Eliminating qualified immunity is on the list of demands from protesters and activists asking for reforms to how police are held accountable for violating the constitutional rights of civilians in the United States. Read more: https://wapo.st/39K2bkW. Subscribe to The Washington Post on YouTube: ht

You should not have some kind of blanket immunity when law enforcement officers break the law, they should be held accountable to the extent that qualified immunity fosters a sense of it's really not my problem. Let'S take a look at it. Qualified immunity is a legal doctrine that was developed through court precedent rather than through congressional legislation. The purpose of qualified immunity ...
s to protect government employees from frivolous litigation. However, it's become an increasingly effective shield in thousands of lawsuits that are seeking to hold cops accountable when they're accused of excessive force when a black man is brutally beaten, his family goes to court and tries to hold the officer accountable. Now the law is written, uh says that the family can do that. It says that the victim of civil rights abuses can do that. Congress passed an act that dates back to reconstruction. It was called the ku klux klan act, and it says very clearly that victims of state violence, civil rights abuses have the right to hold government officials accountable. The civil rights act that congress passed in 1871 created the legal violation really the right to sue qualified immunity is something that courts invented and it says think again: it says we don't care about any of that. We are going to make him immune unless you happen to be able to point to a case that involved the same conduct and the same context where a court told some other officer that it was wrong. So when granting qualified immunity, judges are looking at a kind of a two-part test.

First, was there a civil rights violation, and, secondly, was it clearly established, but a more recent supreme court decision in 2009 allowed judges to skip the first part of the test, and only answer was this violation clearly established as a violation if a certain excessive force conduct Is brought before the court and dismissed from qualified immunity because it wasn't established that also prevents it from being established for future cases. The degree of specificity that the court has required of victims and their families to get any sort of relief or accountability in the courts is quite extraordinary for anyone else for anyone else. If you're talking about a doctor you're talking about a construction worker who you want to hold accountable, showing that they violated the law, you can come into court, we'll hear you we'll give you a trial, but when it comes to police officers, when it comes to state Officials, don't even try that you better be able to show to show us a case where we said this specific conduct was wrong: the degree of specificity that the court has required of victims and their families to get any sort of relief or accountability in the courts. Uh is quite extraordinary: [ music, ] there's a case that went up to the supreme court recently that the supreme court declined to hear and it involved seeking an attack dog on an individual, and in that case there actually was a prior case. A man had already surrendered in an officer nonetheless sick to the attack dog on that man, and the court said that is a constitutional violation and what the lawyers for the police argued in this case was well. But in that case the man was laying face down when he had surrendered and in this new case he was sitting with his arms up and that distinction is sufficiently relevant to say that this officer should get immunity. Our team of reporters read through hundreds and hundreds of lawsuits and we found that not only is qualified immunity, a very common outcome, but that it's been getting easier and easier for police to have lawsuits thrown out because of qualified immunity and we're. Seeing that this is especially true in cases where the judge rules, the rights were violated, but they're still granting qualified immunity from 2005 to 2007. We were looking at cases where defense raises a qualified immunity, defense and in those cases there was a qualified immunity ruling that favored the police in only 44 of cases, but in the more recent years from 2017 to 2019, the ruling on qualified immunity, favored police 57. More than half the time - and there have been a number of supreme court rulings in that peer in between that made it much more difficult for plaintiffs to overcome qualified immunity. It'S a pretty growingly controversial doctrine, even within the supreme court itself. For example, sotomayor in particular has been outspoken in some of her descents writing.

For example, in one it's telling police that they can quote shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. [ music ]. This bill also removes qualified immunity for police officers. That means any police officer can be dragged into civil court by any disgruntled person. They ever come in contact with now we all agree. Bad cops shouldn't be able to hide behind qualified immunity. A year ago i would have said the supreme court is the only audience that uh is really paying attention here, but that's not true. Today, there's been a lot more attention at the congressional level in discussing what could happen to the doctrine next, whether to reform it or abolish it, the house has passed a bill that would end qualified immunity. The resolution is adopted and it's sitting in the senate waiting for action. Everyone would agree that congress has the ability to say that look. We passed the civil rights act of 1871, the ku klux klan act, and we said you can sue police officers and other state officials when they violate your rights and we meant it. We didn't write qualified immunity because we didn't intend for there to be any qualified immunity in that law.

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