America is burning. A video of a white Minneapolis police officer, Derek Chauvin, kneeling on George Floyd's neck for 8 minutes and 46 seconds, causing his death, has lit the United States ablaze. Floyd was a Black American man, completely unarmed; a victim of police brutality in an America where Black people are disproportionately subject to excessive force by the police. In a rare move, Chauvin was charged with third-degree murder and second-degree manslaughter. (Editorial note: by the date of publication, the Minnesota Attorney General raised the charges against Chauvin to second-degree murder and also charged the three additional police officers present at the killing.) Floyd's family lawyer, amongst others, says that Chauvin should face a first-degree murder charge. Protests raging across the country have put police violence in the national spotlight. For decades, Black Americans have found it difficult to sue police officers who use excessive force against them due to a legal doctrine called qualified immunity. It is time the Supreme Court reconsider the value of the doctrine.

QUALIFIED IMMUNITY

After the United States’ Civil War (1861-1865), Congress passed the Enforcement Act (1871) to protect freed Black slaves from violence by white supremacist groups such as the infamous Ku Klux Klan. Now codified as Section 1983 (42 U.S.C. § 1983), the law essentially states that any state actor who violates the rights of a person "shall be liable to the party injured". However, in 1967, the US Supreme Court diluted these safeguards by formulating the concept of qualified immunity.

A comprehensive investigation report by Reuters demonstrates how qualified immunity has made it difficult to hold police officers accountable for the often racially-motivated use of "excessive force" against civilians. The report details the two-part test applied by appellate courts in determining whether to grant such immunity. Firstly, "The court considers whether police used excessive force in violation of the Fourth Amendment to the U.S. Constitution". The Fourth Amendment of the United States Constitution offers people protection against "unreasonable searches and seizures". In Pierson v Ray (1967), the Supreme Court held that police officers had immunity if they acted in "good faith and [with] probable cause." Secondly, the police violation of civilian rights must be "clearly established"; there must be previous case law to support a claim. 

Problematically, both these standards are hard to meet. For the latter, it effectively means that a person seeking to hold the police accountable will need to find a previous case with similar facts to theirs. As the public policy organisation Cato Institute—an early lobbyist against qualified immunity—says in a recent blog post:

“If Mr. Floyd's family wants to sue [Officer Chauvin], they will need to find an existing case from the Eighth U.S. Circuit Court of Appeals holding that a police officer may not kneel on a unresisting suspect’s neck, ignoring his pleas for help, until he passes out.”

Increasing awareness about qualified immunity has resulted in more voices calling for its abolition. 

THE CASE AGAINST QUALIFIED IMMUNITY

While proponents of qualified immunity claim that it shields police from frivolous litigation, it is necessary to acknowledge that this doctrine has prevented holding police accountable in a long chain of cases (see examples), most involving Black Americans. In a dissenting judgment where the Supreme Court invoked qualified immunity for a police officer accused of using excessive force, Justice Sonia Sotomayor wrote: “It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” Indeed, this is exactly what has occurred. 

Clark Neily, senior attorney and vice president for criminal justice at the Cato Institute, explains how the concept of qualified immunity is an "interpretation of a federal statute…not a constitutional doctrine" and says the doctrine is a product of "judicial creative writing". Therefore, while the Supreme Court first constructed the concept, they too can dismantle it. 

The fire may eventually subside, but the US will not stop burning until police are held accountable for abusing their power. There should be no immunity for police brutality. 

Ayesha is a LLB student at the University of Leeds. As an aspiring barrister, she enjoys advocacy and has spoken at platforms including Tedx and GESF. She has a key interest in both Public and International law. She is also founder of a student-led initiative 'COSMOS' that organises projects to promote the UN Sustainable Development Goals.

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