There are a number of reasons justice is so slow ― and often nonexistent ― for victims of police brutality.

Lack of police reform in the United States has given the average police officer a variety of tools to dodge accountability. Overprotective police union contracts are considered to be part of the reason former Minneapolis police officer Derek Chauvin stayed on the force long enough to kill George Floyd, despite the 17 civil complaints stacked against him. Convoluted arbitration processes can put years of red tape and appeals between an officer and disciplinary action. And in some jurisdictions, neck restraints and other deadly maneuvers aren’t even considered violations.

When officers do face legal repercussions, they have another get-out-of-jail-free card in qualified immunity ― a term that typically floats around activist circles but has recently broken into the mainstream.

What is qualified immunity?

First, here’s what it’s not: Qualified immunity is not a law on the books, meaning it could be abolished or altered by legislators at any time.

Qualified immunity is a legal doctrine that shields government employees from civil lawsuits while they are on the job. Proponents of its use in policing argue that law enforcement officers need to be able to make good-faith, split-second decisions and shouldn’t have to worry about frivolous lawsuits later on.

Over the years, however, critics ― including some Supreme Court justices ― have cast doubt on whether such strong protection is indeed necessary. If a regular person breaks the law and hurts someone else, they can be sued and ordered to pay damages. But the rules are much different for cops under qualified immunity.

Some say it allows police officers to act with impunity.

How did this become a thing?

The doctrine can be traced back to the 1871 Civil Rights Act, which established that Americans have the right to sue government officials (police officers included) for violating their rights.

But the Supreme Court vastly limited this ability in a 1967 opinion in the case of Pierson v. Ray, which centered around a group of Black and white clergymen who entered a segregated bus terminal in Mississippi. Police officers asked the 15 men to leave; they refused, and the entire group was arrested for breaching the peace. Writing for the majority, Chief Justice Earl Warren explained that the officers had immunity for their actions because they were undertaken as a good-faith execution of the law.

A later decision involving a government whistleblower amended the doctrine. In 1982, the Supreme Court ruled in Harlow v. Fitzgerald that suits against government officials could be damaging to “society as a whole” if officials became cripplingly afraid of being sued “in the unflinching discharge of their duties.” Therefore, government officials are shielded from liability in civil suits so long as their conduct does not violate “clearly established” law. In 1986, the Supreme Court strengthened the doctrine further, adding that qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”

(The court uses “qualified” to distinguish the term from “absolute” immunity, meaning that, in theory, government officials need to meet certain standards for it to apply.)

Where police are concerned, the court has repeatedly said that “clearly established” law means the circumstances in a complaint against an officer have to be nearly identical to the circumstances in a previously settled case that found an officer liable. The incident has to involve the same “context” and “conduct.” Otherwise, the officer is protected, even if he violated someone’s constitutional rights.

As Justice Samuel Alito argued in a 2009 majority opinion: “Qualified immunity balances two important interests ― the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

What’s wrong with qualified immunity?

Two questions help determine whether qualified immunity can be applied to a case against the police: One, did the officer violate a person’s rights? (In policing, this usually refers to the Fourth Amendment and the use of excessive force.) Two, did that action violate clearly established law?

In 2009, the Supreme Court determined that lower courts can skip the first question altogether.

By requiring victims of police brutality and abuse to point to precedent in order to proceed with their cases, the doctrine is inherently severely limiting.

One egregious example is the case of Jessop v. City of Fresno, which involved a trio of California police officers who attempted to steal $225,000 worth of property while raiding someone’s home with a warrant. In 2019, a federal appellate court sided with the officers. Although the court sympathized with the defendants and found the officers’ conduct “deeply disturbing,” the cops were not found liable because no other court had previously settled the question of whether police officers “violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant.”

Whether or not the behavior violated the defendants’ rights was not even in question ― under qualified immunity, courts need only decide whether there was clearly established law involved.

In the past, the Supreme Court has argued that qualified immunity has other benefits; it is necessary to protect officers from having to pay settlements or being subjected to burdensome discovery and trial. But evidence supporting these arguments is sparse. One study, published by the New York University Law Review, showed that officers seldom pay out settlements themselves; rather, taxpayer funds typically cover the costs. Another study, in the Yale Law Journal, determined that qualified immunity does not stop police departments from having to spend time settling lawsuits.

There is increasingly broad support for reforming the doctrine. In recent years, Justice Clarence Thomas, a conservative, has joined liberal justices Sonia Sotomayor and Ruth Bader Ginsburg in sharply criticizing it.

What are some other real-world examples?

There are many. One case involved a 10-year-old boy shot by a Georgia police officer in 2014 after several officers rushed into a family’s yard where six children were playing. The officers, who were pursuing a suspect, ordered everybody in the yard to get on the ground, including all of the children and their one adult supervisor. Everyone complied, including the suspect, but the family’s pet dog, Bruce, was also in the yard. Even though Bruce posed no threat, an officer fired his gun ― missing and hitting the boy instead, causing him serious injury. The boy’s mother sued, but her case was eventually dismissed.

Another 2014 case involved a Nebraska police officer who body-slammed a 5-foot woman to the ground, fracturing her collarbone, after she walked away from him and toward her child, who was engaged in a heated conversation. A court ruled against her.

In 2012, a Florida officer failed to identify himself when bursting into the home of an innocent man, Andrew Scott, before shooting and killing Scott for no legitimate reason. The officer was granted qualified immunity.

The Supreme Court has agreed to hear one upcoming qualified immunity case during its fall 2020 term. An FBI agent and a Michigan police officer thought a college student, James King, fit the loose description they had of a wanted fugitive, so they stopped him on the street in 2014. There is debate over whether the officers identified themselves; they were wearing street clothes with law enforcement badges around their necks. King complied with an order to put his hands on his head, but became suspicious when one of the officers removed his wallet, prompting King to ask, “Are you mugging me?” King then tried to run, but was tackled, furiously beaten, put in a chokehold and rendered unconscious. He is represented by the Institute for Justice, a libertarian nonprofit.

How do we change it?

Qualified immunity has been shaped by decades of court decisions. If Americans are unhappy with it, their representatives in Congress can pass a bill to abolish the doctrine or specify a lot more clearly when and where it can be used.

It is unlikely that any such reform will occur during the current congressional session. While a measure to curb qualified immunity was included in the Democrats’ police reform package passed this week in the House, Republican Senate leader Mitch McConnell is pushing for a much more modest bill, which does not mention qualified immunity or other reforms. Democrats say the Senate Republicans’ bill is a nonstarter.

But there is still bipartisan hope for change. This week, Sen. Mike Braun (R-Ind.) introduced a bill called the Reforming Qualified Immunity Act aimed at holding law enforcement officers more accountable, arguing that the current doctrine was formed out of “the judicial branch’s overreach of power.”

“While qualified immunity originally was intended to defend government employees acting with good faith, the doctrine has expanded to protect those acting well-outside the law if the allegedly deprived right has not yet been ‘clearly established’ in the relevant jurisdiction,” Braun said in a statement. He expects five to seven of his Republican colleagues to sign on with him.

President Donald Trump, however, has signaled staunch opposition to any reforms that reduce police immunity.

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