Changing the Law to Curtail Police Misconduct
When Derek Chauvin, the Minneapolis police officer, put his knee on George Floyd’s neck he appeared to stare straight into the camera. He was not deterred by being filmed by either a police body camera or the phone of an onlooker. Why wasn’t he concerned, at least for his own legal liability? Two words--qualified immunity.
Chauvin likely knew that as a police officer he would be protected by qualified immunity, a court-created doctrine with no constitutional basis. As the Supreme Court held in the 1982 case of Harlow v. Fitzgerald, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Courts have construed “clearly established” as requiring a prior case with nearly identical facts. In other words, Chauvin could argue that there is no legal precedent specifically providing that kneeling on the neck of another is forbidden.
Practically, qualified immunity can protect egregious police misconduct. As stated by the Supreme Court in Malley v. Briggs (1986) qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”
Both the Court’s most liberal member, Justice Sonia Sotomayor, as well as it most conservative, Justice Clarence Thomas, have expressed a desire to revisit qualified immunity. The Court has indicated that it will hear argument in the appeal of the 9th Circuit case of West v. City of Caldwell. West involves use of the qualified immunity defense to avoid police liability for smashing windows and lobbing canisters of tear gas into a home because someone with a warrant was suspected to be inside.
A new ruling from the nation’s top court would provide pause to police officers. While protecting a civil servant from civil lawsuits makes sense for teachers, firefighters and EPA officials, providing the same qualified immunity protection to an official carrying a deadly weapon may need some changes.
If you know what life is worth
You will look for yours on earth
And now you see the light
You stand up for your rights.
—Bob Marley