Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, June 1, 2020

Revisiting Qualified Immunity in a Time of Chaos

In the midst of a Pandemic, COVID-19’s place atop the headlines seemed secure. Then last week, we were all witnesses to George Floyd’s death at the hands of a Minneapolis police officer. There is broad anger at the injustice, the abuse of power, and the plight of another African-American killed in police custody. We are still watching protests across the country; a fuse of rage lit and now exploding.

Like many, my thoughts turned to Floyd’s family and their right to receive justice, both criminally and civilly. Criminal charges have already followed for the officer who kneeled on Floyd’s neck for over eight minutes. More charges are likely forthcoming for the other officers who stood by.

As for civil damages, Floyd’s murder brings a spotlight to the U.S. Supreme Court, which was already looking at a group of qualified immunity cases for next term. Whether Floyd’s estate can recover for a violation of his civil rights against the now-former Minneapolis police officers may depend on the outcome of the case or cases the Supreme Court decides to take. The Justices discussed more than 10 qualified immunity certiorari petitions at their conference last Thursday, just days after Floyd’s death.

Qualified immunity is a court-made doctrine that provides immunity to government actors against suit as long as they do not violate “Clearly Established” constitutional rights. This standard has been interpreted to require a prior case with a violation of rights that was nearly identical to the violation alleged. It is a difficult standard to meet, even in cases with egregious police conduct. Voices from both the left and the right have criticized Qualified Immunity and are calling for more accountability for police.

If you are interested in reading more, the New York Times ran an OpEd on Friday addressing Qualified Immunity and Floyd’s murder:

https://www.nytimes.com/2020/05/29/opinion/Minneapolis-police-George-Floyd.html
You can also read more at these links:
https://www.usatoday.com/story/news/politics/2020/05/29/police-misconduct-supreme-court-reconsider-qualified-immunity/5275816002/
https://www.cato.org/blog/may-15th-supreme-court-will-finally-decide-whether-hear-cases-calling-abolition-qualified
https://www.aclu.org/blog/criminal-law-reform/when-your-constitutional-rights-are-violated-you-lose-anyway

I suspect many readers have wondered, as have I, how the law can work more proactively to prevent deaths and abuses at the hands of police. Revisiting and refining qualified immunity is an important step. While many officers respect the rights of individuals, those who do not are currently immunized almost all of the time. We have to re-balance the incentive structure to allow accountability. Clearly, the status quo is not working.

https://lawprofessors.typepad.com/appellate_advocacy/2020/06/revisiting-qualified-immunity-in-a-time-of-chaos.html

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