Qualified Immunity: How it became a violation of constitutional rights

Ahmaud Arbery, Breonna Taylor, Philando Castile, Tamir Rice, George Floyd. These names, and many more, have become household since a video of a Minneapolis police officer named Derek Chauvin, kneeling on George Floyds neck, went viral at the end of May.

Leading to worldwide protests in over 60 countries internationally and already being crowned the largest protests in United States History, it’s clear that the killing of Mr. Floyd has struck a chord on the world stage. And rightly so, it’s not everyday that an indisputable violation of constitutional and basic human rights is broadcast worldwide. In fact, to the average person, the simple premise of the killing of George Floyd can seem almost unfathomable. Surely, in America, a first world country, what some crown the ‘’Land of the Free’’, criminal justice and human rights are no more than practices of common sense. So why is it then that police officers can abuse their power and endanger the safety of a citizen, when their exact job is to keep us safe?

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Some communities in America have continued to protest to this day

In short, it’s due to Qualified Immunity. In 1967 the U.S. Supreme Court first introduced the doctrine of Qualified Immunity with the rationale of protecting law enforcement officials from frivolous lawsuits and financial liability. It acted as an exception for public officials who had acted in ‘good faith’ and believed that their conduct was authorised by law.

As with many laws however, that precedent did not remain unchanged. Fifteen years later, in Harlow v. Fitzgerald, the Court expanded the defence. Now, even officials who violate peoples’ rights maliciously will be immune unless the victim can show that his or her right was ‘clearly established’.

This presents claimants with a near impossible task: Showing that an officer’s behaviour violated a ‘clearly established’ precedent. It has since gotten worse for victims trying to prove their case, with the Supreme Court continually reinforcing a narrow definition of ‘clearly established’; lower courts can simply declare that there have been no sufficiently similar cases in the past. 

So what’s happening now? In the wake of George Floyd’s killing, many are calling for a change to qualified immunity. The New York Times Editorial Board have since called on the Supreme Court to ‘ratchet back qualified immunity’ saying that the doctrine ‘let’s cops get away with murder.’ So too have other organisations with Amnesty International urging ‘meaningful police reform legislation’ including ‘an end to qualified immunity’.

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The United States House of Representatives

On the 2nd of June, Congressman Justin Amash also introduced the Ending Qualified Immunity Act in the House of Representatives, currently having 63 cosponsors, all but one of whom are Democrats.

So whilst it appears that change is ahead, we must continue to push for meaningful reforms to seek justice for those unfairly impacted by Qualified Immunity.

Words by Alice Lilley

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