The Supreme Court on Monday has refused to hear cases that relate to the qualified immunity doctrine. The move, coming amid widespread protests over police brutality, was surprising to many. The move to not pick up the cases was unsigned.
In a dissenting opinion, Justice Clarence Thomas, one of the court’s most conservative voices, decried the move. Thomas stated that “qualified immunity doctrine appears to stray from the statutory text”. In recent years, Thomas and left-leaning Justice Sonia Sotomayor have sought to examine the doctrine.
When George Floyd was killed by Minneapolis police, the video of his death shocked the nation. However, his horrific treatment at the hands of Derek Chauvin, a former Minneapolis police officer, is hardly new in the US. Police brutality has been widespread and rampant for decades, particularly toward black communities.
One element of the criminal justice system that makes it so difficult to address this brutality is “qualified immunity”. Created in recent years by the decisions of lower courts, qualified immunity essentially means that police can’t be sued over “frivolous” things. The doctrine asks if police used excessive force, and if that force violates “clearly established” prior court rulings.
Essentially, qualified immunity means that police can’t be sued for conduct unless that conduct has been ruled unlawful in a prior court case. In essence, this means that even minor details of a case can make it impossible to sue an officer over. In Floyd’s case, for instance, qualified immunity could hold that Chauvin can’t be sued as there’s no case saying it’s illegal to kneel on a suspect’s neck in Minneapolis in May.
This leads to a major issue. Police can engage in truly disturbing behavior that they can’t be held accountable for. This means that any cases that come before lower courts can be tossed out. In essence, as long as an action has never been specifically made illegal, a police officer can never be sued for it.
This leads to a true Catch-22. Since conduct that police could be sued over is ineligible for courts to hear, no specific conduct will ever be made illegal. This allows any and all excessive force to be permissible by the courts.
Many community leaders have pointed to qualified immunity as a major reason for why police brutality can’t be addressed. Frustration over police misconduct has boiled over into widespread civil unrest in the US. Frustration over the lack of police accountability has become a massive movement to defund police departments in the US.