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In the aftermath of George Floyd's murder, there was a movement across the country to limit qualified immunity — the legal doctrine that limits the ability to sue police officers for violating a person's civil rights.
Derek Chauvin, the Minneapolis police officer who placed his knee on Floyd's neck for 9 minutes and 29 seconds causing his death, was convicted and sent to prison. Chauvin's case is an outlier. Most police officers who are accused of excessive force are not arrested, and few are ever held accountable in civil court.
After Floyd's death the efforts to limit qualified immunity seemed poised to gain momentum, but that was not to be. According to The Washington Post, at least 35 states' qualified immunity bills stalled in state legislatures nationwide.
Those pushing to eliminate qualified immunity argue that immunity insulates police officers from responsibility for harming people suspected of wrongdoing. Law enforcement officials argue that immunity protects police from being repeatedly harassed by frivolous lawsuits.
In 1967, the U.S. Supreme Court established qualified immunity out of whole-cloth as a judicial doctrine that shields the police and other state officials from liability when violating an individual's civil rights.
America's primary federal civil rights statute can be found in Title 42 of the U.S. Code. "Section 1983" — as it is commonly referred to — provides that any state actor who violates a person's constitutional rights "shall be liable" to the party injured.
Section 1983 grew out of the Civil Rights Act of 1871. The Act was passed after the Civil War to prevent public officials and the Ku Klux Klan from violating the constitutional rights of former slaves.
The doctrine of qualified immunity provides that a police officer cannot be put on trial for unlawful conduct, including the use of excessive or deadly force, unless it is proven that the conduct was unlawful and the officers should have known they were violating "clearly established" law.
Even if a claimant can demonstrate that the police officer acted unlawfully, the officer will not be liable unless the second prong is satisfied — the precise illegal conduct must have already been found in a prior court case.
According to the Equal Justice Initiative, the second requirement provides an especially powerful shield for officers because courts often require a nearly identical case to use as "clearly established" precedent.
Courts often note in cases of excessive or lethal force that although past cases were similar, lawsuits fail because the facts of prior cases were not precisely on point. The result: the badly injured or killed are left without a remedy.
Eighteen months after Floyd's murder, the U.S. Supreme Court ruled in favor of police officers in two cases involving qualified immunity.
The two cases concerned police officers accused of using excessive force when responding to domestic disturbances. According to National Public Radio, one case involved officers using beanbag rounds and a knee on the suspect's back to subdue him; in the second, officers shot and killed the suspect after he approached them while raising a hammer.
It looks like qualified immunity is going to be around for a while. In fact, the state of Louisiana wants to extend immunity to gun owners with permits to carry concealed weapons. According to the Louisiana Illuminator, the proposal is part of the governor's special legislative session on crime.
According to the Illuminator, the proposed law known as Senate Bill 2 has cleared the Senate Judiciary Committee and will head to the full Senate for a vote. When asked why concealed carry permit holders deserve a special type of immunity not given to other citizens — the bill's sponsor responded, they are "exercising a natural G od-given right."
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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing.
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