George Floyd and Beyond: How “Qualified Immunity” Enables Bad Policing

Arlington, Va. —This week, the U.S. Supreme Court will consider whether to accept eight different cases that spotlight how the system of “qualified immunity”—which the Supreme Court created in 1982—has led to the regular and widespread violation of constitutional rights by police and other government officials.

While the nation is focused on the tragic death of George Floyd, qualified immunity cases have allowed government officials to steal, maim, willfully destroy property, and even kill, all without facing any consequence for their actions. If any ordinary citizen of the United States had engaged in such actions, they would face the full weight of the law against them; but because of qualified immunity, government officials are often held to a shockingly lower standard, leaving their victims to suffer insult after injury.

Qualified immunity means that government officials cannot be held accountable for violating the Constitution unless they violate a “clearly established” constitutional rule. In practice, that means that government officials can only be held liable if a federal court of appeals or the U.S. Supreme Court has already held that someone violated the Constitution by engaging in precisely the same conduct under precisely the same circumstances.

How precisely must the violation match? Officers were recently granted qualified immunity when they let their police dog attack a suspect who was seated with his hands raised because the court found that an earlier case in which police let loose their dog on a suspect who was lying down wasn’t a close enough match.

“Qualified immunity means that government officials can get away with violating your rights as long as they violated them in a way nobody thought of before,” explained Institute for Justice (IJ) Attorney Anya Bidwell. “And that means that the most egregious abuses are frequently the ones for which no one can be held to account.”

Qualified immunity applies only in civil lawsuits—not criminal ones. But such civil suits are the only means by which individuals or their surviving family members can get compensation for the violation of constitutional rights. And prosecutors often resist bringing criminal charges against government colleagues, especially police officers who are crucial to the daily work of prosecutors.

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