The Supreme Court Wants to Make It Even Harder to Sue Abusive Cops

Qualified immunity is a legal term that sounds strange but is not difficult to understand. Simply put, government officials, including law enforcement officials, cannot be sued as individuals for acts they commit under their official responsibility.

The doctrine was invented by courts to limit the liability of those who carry out the law in good faith, even if it is a law some people dislike. While some form of qualified immunity is likely necessary to have a functioning society – we cannot allow IRS employees to be sued for theft every time they garnish someone’s wages – its application to law enforcement officers poses a different problem: The police are able to operate with what appears to be legitimate authority, even when their actions are downright illegal.

In the past two decades, the weakening of qualified immune protection has become popular among progressives. Lawyers seeking justice for Muslim Americans whose constitutional rights were trampled after September 11, 2001, brought various lawsuits to “break the veil” of qualified immunity and bring officials to justice for their constitutional violations. Calls to end qualified immunity have only grown louder as police officers continue to be captured on videos brutalizing or murdering black people. Recent polls show that 59 percent of Americans are in favor of ending qualified immunity for at least police officers, which represents a high level of dislike for bizarre legal doctrine. I mean, it’s not that nearly 60 percent of the country has an opinion on debt or the perpetual rule.

Unfortunately, attempts to weaken qualified immunity have failed completely in the courts, particularly in the Supreme Court. In mid-October, the judges overturned two decisions in which lower courts had allowed citizens (or their estates) to sue police officers for excessive use of force. In one case, a policeman kneeled on the back of a suspect (eight seconds instead of eight minutes) because the policeman saw a knife. In another, officials shot and killed a man who allegedly wielded a hammer after cornering him in a garage. In both cases, the Supreme Court ruled that even if a jury found the officers’ conduct as excessive use of force, they could not be sued because they had qualified immunity.

But the court didn’t stop there. Rather than simply applying existing principles of qualified immunity to these cases, the court used them to strengthen the doctrine and make it difficult for other litigants to breach this immunity in the future. Qualified immunity can only be defeated if you prove that police officers have violated a clear and known constitutional standard. For example, the right to remain silent is a clear and well-known constitutional protection, and a police officer who beats a suspect until he starts to speak could lose qualified immunity. I would argue that it is also clear and well known that police officers are not allowed to hit a suspect’s child in order to force the suspect to speak, but the Supreme Court rulings in these cases make it difficult for litigants to prove that an iterative one Protections such as “not beating family members” are clear and even harder to prove that the police should know about them.

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