GMA reports with police misconduct in the spotlight, the U.S. Supreme Court on Thursday will consider whether to revisit its 50-year-old doctrine of “qualified immunity” for law enforcement officers, which has shielded cops from civil lawsuits even in cases where a citizen’s rights have been violated.
“This is the cornerstone of our culture of near-zero accountability for law enforcement,” Jay Schweikert, a criminal justice policy analyst at the Cato Institute, said of the doctrine created by the court in the late 1960s.
While the Civil Rights Act of 1871 gives Americans the unambiguous ability to sue public officials over civil rights violations, the Supreme Court has subsequently limited liability to only those rights that have become “clearly established law.”
Critics say the standard is near-impossible to meet.
“In order for a plaintiff to defeat qualified immunity, they have to find a prior case that has held unconstitutional an incident with virtually identical facts to the one the plaintiff is bringing,” said UCLA law professor Joanna Schwartz. “And over the last 15 years, the court has made it a more and more difficult standard for plaintiffs to overcome to go to trial.”
The issue has been percolating in lower courts for years and drawn increasing scrutiny from across the political spectrum. It returns to the Supreme Court now by coincidence, as the country grapples with fallout from the death of George Floyd while he was in Minneapolis police custody on Memorial Day.
During their private weekly conference, the justices are expected to review petitions in eight different cases involving qualified immunity, which the court established in an attempt to curb gratuitous litigation.
In one case, a Tennessee man suspected of burglary was mauled by a police dog that was released by officers after he was sitting on the ground with his hands raised in surrender.
Another involves a Georgia mother whose 10-year-old son was inadvertently shot in the leg by a deputy pursuing a suspect into the family’s yard.
An Idaho woman who gave police permission — and the keys — to search her home for a fugitive, wants to sue the officers who instead spent hours bombarding it from the outside with tear-gas grenades that destroyed her property. The fugitive was not inside.
In each case, federal courts dismissed lawsuits against the officers in light of the qualified immunity doctrine.
“It must be the case that this is weighing heavily on the justices’ minds,” said Schweikert. “They are smart enough to recognize the direct connection between the doctrine of qualified immunity and the outrage over the lack of accountability for law enforcement motivating so many people to the demonstrations that we’re seeing.”
Police officers accused of misconduct can face criminal charges, but convictions are exceedingly rare. That leaves civil lawsuits as one of the few avenues for alleged victims to pursue their claims.
In a 2018 dissent, Justice Sonia Sotomayor warned that qualified immunity had become an “absolute shield” for law enforcement, “gutting the deterrent effect of the Fourth Amendment.”
“It tells officers that they can shoot first and think later,” she wrote, in a statement joined by Justice Ruth Bader Ginsburg.
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