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Qualified Immunity

Published June 19, 2020

As the Black Lives Matter movement makes waves throughout the nation, qualified immunity, a legal doctrine first introduced in 1967, is a vital part of the conversation. Initially used to defend law enforcement officials who were acting in good faith, qualified immunity is applied to cases involving the use of excessive or deadly force by the police. It has been invoked in recent events surrounding in the deaths of George Floyd and Breonna Taylor. However, these tragedies and police responses to recent protests have called this doctrine into question prompting for its reform.

What is Qualified Immunity? The purpose behind qualified immunity is so police officers, as government employees, can perform their job more effectively without the fear of a potential lawsuit looming over them. It allows them to rely on their discretion in unforeseen circumstances. As this immunity has been vaguely and broadly defined by the courts, it has in essence provided a “loop hole” for questionable police actions. This lack of concrete application is incredibly harmful as it can deny victims of their constitutional rights as seen with the gross lack of justice for black lives that suffer from police brutality.

The doctrine also impacts police accountability, especially when it comes to the lives of Black Americans. Accountability in law enforcement is impacted and subverted by qualified immunity as it works to protect police officers, who as mentioned are government officials, from their actions as long as it does not directly violate federal law. In Harlow v. Fitzgerald (1982), the Supreme Court expressed that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate established statutory or constitutional rights of which a reasonable person would have known.” This essentially means that as long as the actions of police officers do not directly undermine federal or constitutional law, they will not be held personally liable for their misconduct. Additionally, government officials are absolved if the federal appellate courts including the Supreme Court have not previously found constitutional rights violated in a similar manner and circumstances. Hence, the immunity makes it nearly impossible for anyone to hold police officers accountable for their actions since even the smallest of discrepancies can be considered a unique and individual case regardless of how frequent and similar these situations.

In this new age of digital media, videos are circulating of police officers instigating violence, antagonizing peaceful protesters, and running over participants with their government-mandated vehicles. Many of these officers know they will be shielded from any repercussions due to qualified immunity and diminishes their motto: protect and serve. Coupled with other factors such as racial profiling and white supremacy within law enforcement, qualified immunity creates an environment that places minorities in severe danger every day Black Lives Matter movement is calling for the end of qualified immunity and is asking people to call and email their local officials to vote for its removal. Justin Amash, a representative of Michigan, has already proposed legislation that will abolish qualified immunity. While it’s unclear how much support this bill will garner, it comes with the hope that qualified immunity will at the very least be revised and worked into something that also ensures the rights of the people.