Ending qualified immunity: Five things to know about the legal obstacle protecting police officers who violate the rights of citizens

Both incidents sparked protests and a national conversation about the use of force by law enforcement but have diverged in one significant aspect: The officer who put Garner in a chokehold was never indicted on criminal nor civil charges (the debate over whether to bring federal civil right charges ended last year), while the officer who pinned Floyd was charged with third-degree murder and manslaughter. But if Floyd’s family were to pursue civil recourse, they will likely wade into the same issue experienced by Garner’s relatives.

Garner’s family received $59 million from a civil settlement with the New York City Police Department, but they were unable to pursue a federal civil rights lawsuit against Daniel Pantaleo, the officer who performed the chokehold and denied using excessive force, because he was protected by qualified immunity (Pantaleo, who was fired in August, sued to get his job back in the fall). This sparked a wave of calls for reforming qualified immunity. During his brief run for president, Julian Castro listed Garner’s case as justification for his proposal to end qualified immunity as the cornerstone of proposed policing reforms.

Now, Floyd’s death has inspired many more calls for change, including legislation that has drawn bipartisan attention in the House and the Senate.

What is qualified immunity?

Qualified immunity is a legal protection for government officials that prevents them from being individually held liable in federal civil rights lawsuits for illegal and unconstitutional acts. The immunity not only protects individual officers from facing damages for violating the rights of a citizen, but it blocks federal civil rights cases from going to trial, thus shielding them from the financial burden that comes with a lawsuit.

A civil rights lawsuit can only be brought against a government official if it can be proven a “clearly established” right has been violated, but that’s a high bar to cross.

What is a “clearly established” right?

Clearly established rights are centered on precedent, taking cues from court decisions of the past by a federal court in the same jurisdiction or the Supreme Court on similar situations. It does not matter whether the offending official maliciously violated a citizen’s rights.

This legal threshold is difficult to meet. In February of this year, the 5th Circuit Court of Appeals ruled that an inmate in a Texas prison could not seek federal legal recourse against a prison guard who pepper-sprayed him in the eyes “for no reason” because the legal precedent only included cases where a prisoner was tased or hit without reason. There was no precedent for mace, so the prison guard was granted qualified immunity.

What has the Supreme Court said?

Qualified immunity has been around in some form since a court ruling in 1967 and was greatly expanded in the 1982 Supreme Court ruling in Harlow v. Fitzgerald. In that ruling, the court said qualified immunity was needed to allow law enforcement officials to do their job without fear of persistent legal recourse, no matter their intent.

The 1982 ruling did away with the legal threshold that mandated an officer act in “good faith.” The officer must only prove to the court that he or she holds a government job that requires immunity, such as being a member of a police department, and that he or she was working in that capacity when the incident took place.

The Supreme Court has made several rulings over the years reaffirming qualified immunity.

“Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably,” the court wrote in Pearson v. Callahan, a subsequent qualified immunity ruling from 2008.

The court announced in May that it had declined to hear three additional cases seeking to scale qualified immunity in its current session.

What do supporters of qualified immunity say?

Those in law enforcement see qualified immunity as a necessary legal protection that allows officers to do their job.

“Law enforcement is a difficult profession. It presents many challenges and risks, as well as great rewards, to those who undertake it,” the FBI said in a post to its Law Enforcement Bulletin. “One of the risks associated with law enforcement is the possibility of being sued civilly for an action taken in the course and scope of one’s employment. In an effort to mitigate the costs and burden of defending oneself from a lawsuit, government actors are entitled to assert immunity as a barrier to being sued.”

John Michael Callahan, who has more than four decades of experience as a law enforcement officer, wrote in Police One that “value of the qualified immunity defense to law enforcement officers in use of deadly force cases cannot be understated.”

“The United States Supreme Court has demonstrated remarkable understanding of the very difficult and dangerous challenges that confront law enforcement officers on the streets of America today,” Callahan wrote. “The Court’s strong interest in protecting our nation’s domestic sentinels is displayed in decisions which recognize and support a ‘qualified immunity’ legal defense for officers who must defend themselves in lawsuits arising out of life and death street confrontations.”

What actions are being taken to change qualified immunity?

On Sunday, Michigan Rep. Justin Amash, an independent, announced his intention to introduce legislation that would end qualified immunity for law enforcement. In a letter to his colleagues, he argued that it was time for Congress to “correct” the “mistake” of the Supreme Court by passing his bill to abolish qualified immunity for officers.

“The brutal killing of George Floyd by Minneapolis Police is merely the latest in a long line of incidents of egregious police misconduct,” Amash wrote. “This pattern continues because police are legally, politically, and culturally isolated from the consequences of violating the rights of people whom they have sworn to serve. That must change so that these incidents of police brutality stop happening.”

New Jersey Sen. Cory Booker and Massachusetts Sen. Ed Markey, both Democrats, announced their intention to introduce a Senate resolution to push for the reform of the qualified immunity legal doctrine.

“Cities are literally on fire with the pain and anguish wrought by the violence visited upon black and brown bodies,” Booker said. “There’s no one singular policy change that will fix this issue tomorrow. We need an entire set of holistic reforms to improve police training and practices and ensure greater accountability and transparency.”

Beyond qualified immunity

Qualified immunity may prevent the Floyd family from pursuing federal civil rights damages from the officers involved in his arrest, but they are still facing significant legal ramifications for their actions.

The officer who was filmed kneeling on Floyd’s neck, Derek Chauvin, was fired by the Minneapolis Police Department and later was arrested and charged with third-degree murder and manslaughter.

Minnesota’s Attorney General Keith Ellison took over the case, and the attorney for Floyd’s family said authorities told them “they expect” the other three officers involved in the detainment that led up to his death will be charged.

Attorney General William Barr announced on Friday that the Justice Department is carrying out an independent investigation into Floyd’s death “to determine whether any federal civil rights laws were violated.” He said the process for deciding whether to press federal civil rights charges “is proceeding quickly” but that “the state’s charging decisions will be made first.”

Minnesota Gov. Tim Walz also announced on Tuesday that the state would be filing a human rights complaint against the Minneapolis Police Department.