Congress and the Courts Must Curtail or Eliminate Qualified Immunity Now - Williams Cedar LLC

Congress and the Courts Must Curtail or Eliminate Qualified Immunity Now

In earlier posts, we have written about the devastating effects on civil rights that the legal doctrine of “qualified immunity” has had: An Idea Whose Time (to Fade Away) Has Come. In the years we have spent representing victims of police misconduct, Williams Cedar lawyers have often had to overcome police defenses of qualified immunity to obtain compensation for our clients whose rights have been violated: Family of Slain Trooper Wins Appeal in Important Civil Rights Case and Williams Cedar Defeats Summary Judgment in Important Civil Rights Case. The defense appears in practically every case brought under the federal Civil Rights Act of 1871, 42 U.S.C. Sec. 1983. In essence, it holds that law enforcement officers and the agencies that hire them cannot be sued unless it is established that they have engaged in misconduct identical in every respect to behavior that the Supreme Court has already found to be unconstitutional. It has served to excuse police brutality and other violations when officers claim they acted in “the heat of the moment’, or assumed for no reason that an innocent person posed a risk to them, or did not intend the injury that their intentional acts caused. It has even been used to exonerate officers using lethal force on unsuspecting residents after executing warrants at the wrong address or for the wrong person. These and other defenses based on qualified immunity often result in early dismissal of civil rights cases. Worse, the existence of the theory likely reduces the number of cases even initiated, sometimes when the victim has died or been seriously injured.



Recent events, including the horrific death of George Floyd in Minneapolis, may have finally brought qualified immunity into the light of public scrutiny. Before now, most citizens, even those who  were knew something about Section 1983, were likely unaware that qualified immunity is not written into the statute, and was never part of the common law as it existed for a century after Section 1983’s passage. Qualified immunity is, plain and simple, an invention of judges. It was first pronounced in the 1960s, to shield police—in rare, extenuating circumstances involving newly articulated rights—but also to warn them that the same conduct, if repeated in the future, would be considered a “clearly established” Constitutional violation. Over the decades some federal courts, including the Supreme Court, have expanded its application far beyond its original purposes, allowing officers involved in gross misconduct to escape accountability.



Today, public figures, including state and Congressional representatives, television pundits, and even judges—including conservative Supreme Court Justice Clarence Thomas—seem at long last to have come to grips with “qualified immunity” and the need to curtail or abolish it if the Constitution is to offer real protection to people who encounter police misconduct. But words and aspirations are not enough. Congress has the power to reform qualified immunity, and federal courts have the power to restore it to its original, proper limits. They must act, and act now.

By: Gerald Williams, Esq.



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