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

And later this month, the Justices will consider whether to accept a third case from IJ’s Project on Immunity and Accountability, brought on behalf of a Colorado family whose home was destroyed[5] by police in pursuit of a suspect who had no connection to them.

As the Institute for Justice reported this past week in the definitive oped on the issue of qualified immunity that ran in USA Today[6]:

Four decades on, qualified immunity routinely shields both the incompetent and those who knowingly violate the law. In the past year alone [along with the two cases above] courts have granted qualified immunity to:

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said IJ Senior Attorney Robert McNamara, who is lead counsel in the West case and who heads up the Institute for Justice’s Project on Immunity and Accountability[7]. “It is past time for the Supreme Court to admit as much and start expecting government officials to follow the Constitution.”

The drumbeat of voices calling for an end to qualified immunity and a return to basic government accountability has only grown louder in the wake of the killing of George Floyd by Minneapolis police officers. Articles in outlets ranging from USA Today to Fox News Channel[8] to the New York Times editorial page[9] all pointed to the slaying as a symptom of a broader culture of official impunity and called upon the Supreme Court to rethink—if not abandon entirely—its qualified immunity rules.

“There is no shortage of outrageous qualified immunity cases for the Supreme Court to take,” said IJ Attorney Patrick Jaicomo. “It should no longer avoid the issue. The skewed incentives of qualified immunity guarantee that lower courts will continue to generate more examples of injustice, and we will keep bringing those examples back to the courthouse steps until we break through.”

“The principle at stake is simple: If citizens must obey the law, then the government must obey the Constitution,” concluded IJ President and General Counsel Scott Bullock. “The Constitution’s promises of freedom and individual rights are important only to the extent that they are actually enforced—and the Institute for Justice will work tirelessly to ensure that they are.”

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