protesters hold up "no justice no peace" sign
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Earlier this week, the Supreme Court declined to re-examine qualified immunity, the controversial legal doctrine that shields police and other government officials from being sued over violent (and sometimes fatal) conduct.

In light of the Supreme Court decision, Democrats now argue that Congress must act to abolish qualified immunity so that possible victims of police brutality can have their day in court.

Over the last two weeks, uprisings have extended across the United States as protesters demand justice for George Floyd, Breonna Taylor, Rayshard Brooks, and countless other victims of police brutality. The fact that the officers responsible for any of these deaths have not been arrested has shone a light on the unfairness of the immunity and the way it is implemented.

The model of qualified immunity is one of the most efficient ways police officers are able to evade accountability, which is why abolishing the doctrine is so important to real police reform.

Below, we’ve broken down what qualified immunity means, how it works, and how it might be abolished.

What is qualified immunity

Under federal law, qualified immunity protects government officials (such as police officers) from being held personally responsible for constitutional violations, including excessive police force. Government agents avoid lawsuits for violating constitutional rights if they can demonstrate that those rights weren’t “clearly established” at the time.

The original idea behind this doctrine was to protect officers from “frivolous” lawsuits and allow some “breathing room” for police mistakes that involve split-second judgments in tense and dangerous situations.

How does it work

When applied to the police, the doctrine asks two questions: Did police use excessive force? If they did, should they have known that their conduct was illegal because it violated a “clearly established” prior court ruling that barred such conduct?

Officers can claim entitlement to “qualified immunity” to avoid liability in the event that they shoot, injure, and/or kill a civilian on the job. But it doesn’t always work: Last week, the Fourth Circuit U.S. Court of Appeals unanimously rejected qualified immunity for the officers who tasered, choked, beat, and shot an unarmed Wayne Jones 22 times while he lay on the ground. His family had filed a civil rights lawsuit against both the five officers involved and the city of Martinsburg, but officers successfully argued that they were entitled to qualified immunity because Jones’ rights weren’t “clearly established” at the time of the shooting.

Why is it so dangerous

Lower courts often dismiss police misconduct lawsuits on grounds that there is no prior court decision with nearly identical facts. This means that police are essentially empowered to overreact and abuse people without the fear of being sued.

Numerous studies, including one conducted by Reuters, have found that dozens of cases involving horrific acts of police brutality were thrown out of court on the grounds that there was no “clearly established” court precedent forbidding the conduct.

Prosecutors are notoriously unwilling to file criminal charges against government agents. Suing officers for damages in civil court is often the only option for victims of government abuse. But having to demonstrate “clearly established” court precedent is an intentionally paradoxical demand.

What does it have to do with police reform

This is one of the most effective ways in which police officers are able to break the law and endanger the lives of marginalized people with impunity. In a 2018 ruling, Justice Sotomayor wrote that with the immunity, police can “shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” This dynamic underpins the current crises of police enforcement in the United States, which largely threatens marginalized communities.

How could this change

On Monday, the Congressional Black Caucus unveiled the Justice in Policing Act of 2020, which calls for the elimination of qualified immunity for local and state law enforcement officers. That proposal follows the End Qualified Immunity Act, which would end qualified immunity for all local and state government officials, not just police officers and prison guards.

Abolishing qualified immunity would not mean that officers would be unfairly targeted by lawsuits or that anyone who files a civil rights lawsuit would automatically win their case against an officer — it would only eliminate a barrier that normally prevents juries from hearing and deciding cases on their merits.

Weekend Staff Writer

Isabelle is an Australian writer based in Berlin.