Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
On May 25, Minneapolis police killed George Floyd. While two officers pinned the handcuffed Floyd on a city street, another fended off would-be intervenors as a fourth knelt on Floyd’s neck until — and well after — he lost consciousness.
But when Floyd’s family goes to court to hold the officers liable for their actions, a judge in Minnesota may very well dismiss their claims. Not because the officers didn’t do anything wrong, but because there isn’t a case from the 8th Circuit U.S. Court of Appeals or the Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for nearly nine minutes until he loses consciousness and then dies.
And such a specific case is what Floyd’s family must provide to overcome a legal doctrine called “qualified immunity” that shields police and all other government officials from accountability for their illegal and unconstitutional acts.
The Supreme Court created qualified immunity in 1982. With that novel invention, the court granted all government officials immunity for violating constitutional and civil rights unless the victims of those violations can show that the rights were “clearly established.”
A virtually unlimited protection
Although innocuous sounding, the clearly established test is a legal obstacle nearly impossible to overcome. It requires a victim to identify an earlier decision by the Supreme Court, or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the official is immune. Whether the official’s actions are unconstitutional, intentional or malicious is irrelevant to the test.
We are not being hyperbolic. Outrageous examples abound.
For instance, last November the 6th Circuit U.S. Court of Appeals held that Tennessee cops who allowed their police dog to bite a surrendered suspect did not violate clearly established law. There, the victim cited a case where the same court earlier held that it was unconstitutional for officers to sic their dog on a suspect who had surrendered by lying on the ground with his hands to the side. That was not sufficient, the court reasoned, because the victim had not surrendered by lying down: He had surrendered by sitting on the ground and raising his hands.
Screaming into the void:Video of George Floyd pinned by Minneapolis cops is shocking but not surprising
And in February, the 5th Circuit U.S. Court of Appeals held that a Texas prison guard who pepper sprayed an inmate in his locked cell “for no reason” did not violate clearly established law because similar cited cases involved guards who had hit and tased inmates for no reason, rather than pepper spraying them for no reason.
In both cases, the officers were granted qualified immunity.
When the Supreme Court conceived qualified immunity, it promised that the rule would not provide a “license to lawless conduct” for government officials. Plainly, it has.
Supreme Court can right their wrong
Four decades on, qualified immunity routinely shields both the incompetent and those who knowingly violate the law. In the past year alone — along with the two cases above — courts have granted qualified immunity to:
â–ºOfficers who stole $225,000.
â–ºA cop who shot a 10-year-old while trying to shoot a nonthreatening family dog.
â–ºPrison officials who locked an inmate in a sewage-flooded cell for days.
â–ºSWAT team members who fired gas grenades into an innocent woman’s empty home.
â–ºMedical board officials who rifled through a doctor’s client files without a warrant.
â–ºCounty officials who held a 14-year-old in pretrial solitary confinement for over a month.
â–ºA cop who body-slammed a 5-foot-tall woman for walking away from him.
â–ºPolice who picked up a mentally infirmed man, drove him to the county line and dropped him off at dusk along the highway, where he was later struck and killed by a motorist.
On Monday, the Supreme Court will announce whether it will hear some of those cases and reconsider the doctrine of qualified immunity. If it does, there is hope that the court will revoke the license to lawless conduct it granted government officials in 1982. If it does not, lack of accountability will continue to rule the day and the promises of the Bill of Rights will be a matter of judicial grace, rather than constitutional right.
In that world — the one we live in right now — police officers and all other government officials will continue to behave as if the law doesn’t apply to them. Because, thanks to qualified immunity, it doesn’t.
Patrick Jaicomo and Anya Bidwell are attorneys at the Institute for Justice, and Bidwell is IJ’s Elfie Gallun Fellow in Liberty and the Constitution. Follow Jaicomo on Twitter: @pjaicomo