A Time For Tripartisanship: The Ending Qualified Immunity Act

Over the past several weeks, we have once again seen a string of senseless killings of innocent black citizens including George Floyd, Ahmaud Arbery, and Breonna Taylor. Time and time again, we have seen the all too common stories of a police officer's abuse of power resulting in the death of an innocent black man. And yet, for all of the social media campaigns, outpourings of support for the victims' families, and demands for justice, nothing seems to change.

As we continuously see the criminal justice system fail to provide adequate remedies in these situations, I have often wondered why there are never any wrongful death lawsuits filed against these officers, which could provide multi-million dollar settlements to the relatives of victims. The answer, as it turns out, is qualified immunity, a concept which has been brought into the public light by Rep. Justin Amash (L-MI) in his latest bill, the "Ending Qualified Immunity Act."

In the Civil Rights Act of 1871, it was established that public officials who clearly violate someone’s constitutional rights could be sued, a very logical idea. But through the creation and expansion of qualified immunity, this portion of the CRA of 1871 has been amended and neutered by the courts.

The idea of qualified immunity was first introduced in the 1967 U.S. Supreme Court case Pierson v Ray. In 1961, policemen had arrested a group of black ministers on the basis of probable cause for allegedly disrupting the peace by using a white’s only bathroom. It later was discovered that they did not disrupt the peace in their use of the bathroom, and thus the ministers sued, stating that the false arrest violated their constitutional rights. This led the Supreme Court to create the idea of qualified immunity to prevent lawsuits towards cops acting on probable cause, provided they acted in “good faith.” The majority opinion stated that a policeman should not have to choose “between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does.” Though this doctrine prevented the ministers from succeeding, the Court’s position was logical so as to prevent frivolous lawsuits and dereliction of duty.

But in Harlow v. Fitzgerald, the Court set a new standard. No longer was the prerequisite of “good faith” on behalf of the government official necessary. According to the Court, even malicious actions should receive qualified immunity when victims cannot “clearly establish” the existence of a right. Thus, the burden of proof was now switched from the invoker of qualified immunity to the challenger. In practice, this means that unless the victim can find a previous ruling involving the same exact context and conduct, qualified immunity applies and the suit is to be thrown out.

Now, it is almost impossible for a lawsuit against government officials, including police officers, not to fall under the broad definition of qualified immunity. If no previous suit had the identical context and egregious conduct as the suit alleges, the victim is simply out of luck. Furthermore, it is borderline impossible to receive an exception (only one such example has been granted, in the 2002 Supreme Court case Hope v. Pelzer).

While this debate over legal definitions may seem full of semantics and legal jargon, its real-word implications are all too clear. Take, for instance, the brutal murder of George Floyd in which an officer knelt on a detainee’s neck for 9 minutes, while the detainee screamed “I can’t breathe! I can’t breathe!” Under the 1871 and 1967 standards, the Floyd family would have clear grounds to sue the officer. But today, in following the Howard v Fitzgerald ruling, any civil suit would be thrown out immediately.

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