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LawyersBlvd This is What We’re All Thinking Now: What is Qualified Immunity for Police Officers
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This is What We’re All Thinking Now: What is Qualified Immunity for Police Officers

Anne Kramer Jun 29, 2020
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There’s a difficult legal obstacle if police and government officials violate our constitutional rights. On May 25, 2020 Minneapolis police murdered George Floyd. Two officers  handcuffed Floyd on a city street, another warned off possible interveners while the fourth knelt on Floyd’s neck till he lost consciousness.

But if Floyd’s family expects the court to penalize officers for their actions, a Minnesota judge may possibly dismiss their claims, not for wrong-doing, but because of no previous case from the 8th Circuit U.S. Court of Appeals or the Supreme Court, ruling that it is unconstitutional for the police to do what they did until he loses consciousness and the detainee dies. Floyd’s family must overcome a legal doctrine called ‘qualified immunity’ protecting police and other government officials from accountability for their illegal acts. The Supreme Court brought to effect qualified immunity in 1982 and with this “novel invention”, the court gave immunity to all government officials violating constitutional and civil rights, unless victims reveal how rights were established.

Unlimited Protection to Law Enforcement

Although rather innocuous sounding, it is impossible to overcome. The victim has to identify a decision already passed by the Supreme Court, or the same jurisdiction’s federal appeals court, upholding the same conduct under similar circumstances is either unconstitutional or illegal. If no such case exists, the official is immune. Whether actions were unconstitutional, intentional or malicious, it is irrelevant. In November 2019, the 6th Circuit US Court of Appeals agreed that Tennessee cops who allowed their police dog to bite and attack a surrendered suspect, had not violated the established law. The victim cited a similar case in court where it was ruled unconstitutional for the police officers to use their dog on a suspect who surrendered by lying on the ground. That was ruled inconclusive as the victim did not surrender by lying down but by sitting on the ground.

In February, the 5th Circuit US Court of Appeals ruled that a Texan prison guard who used pepper-spray on an inmate in his locked cell, without reason, did not violate law as similar cases involved guards who hit and tasered inmates without reason, instead of pepper-spraying them without reason. In both cases, officers were granted qualified immunity. When qualified immunity concepts were conceived, the Supreme Court promised not to provide license to lawless conduct for government officials. Regrettably, it has.

Supreme Court can rectify past wrongs

For four decades, qualified immunity shielded the incompetent and others cynically violating the law. In 2019, along with the cases mentioned above, courts have previously granted qualified immunity in some questionable cases such as ; officers who stole $225,000. A cop who shot a 10-year-old when shooting at a non-threatening dog. Prison officials who confined an inmate in a cell for days which was filling up with sewage. SWAT officers who fired multiple gas grenades inside an innocent lady’s empty home. The Supreme Court will announce if some cases can be re-visited by reconsidering the doctrine of qualified immunity. The Court then revokes the license to lawless conduct granted to government officials in 1982. But if it does not, non-accountability continues to rule. Promises recorded in the Bill of Rights will be subject to judicial grace, and not by constitutional right. Police and government officials will behave as if laws do not apply to them because due to qualified immunity, it actually doesn’t.

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