The New Hot Potato in American Justice - Qualified Immunity Doctrine

June 29, 2020

Law enforcement officials would become liable to lose their home, pension, car, and assets for a mistaken split-second decision, if Qualified Immunity is abolished. This week SCOTUS ducked the issue, and Congress grabbed it.
The death of George Floyd while in police custody sparked protests and demonstrations across the country. Everyone has a right to be mad-as-hell about what happened in this tragedy, but wholesale condemnation of law enforcement is unacceptable. The officers involved have been fired and each awaits a criminal trial in the killing.   
In the American Justice System, criminal courts hand out prison sentences and death penalties. Civil Courts make monetary awards. The Supreme Court effectively surrendered jurisdiction on "Qualified Immunity" to Congress this week, declining to hear ten Qualified Immunity cases. One such case is Alexander Baxter who claims two law enforcement officers set a dog on him after he surrendered during a burglary. Baxter was sent to the emergency room. Baxter is supported by the NAACP, CATO Institute, ACLU, and the Alliance Defending Freedom.
Supreme Court Justice Clarence Thomas felt that SCOTUS should have heard these cases. Thomas wrote that modern Qualified Immunity has “strayed from the original putative common-law rule that existed when the law was adopted.” He is skeptical about the use of excessive force and said there is no justification for the one size fits all protection of Qualified Immunity. The Supreme Court which wrote the original law could have amended the protections to remedy shortfalls. 
The Doctrine of Qualified Immunity was created in 1982 when the SCOTUS addressed the 1871 Civil Rights Act provision, which gave Americans the right to sue government officials and law enforcement. Performing discretionary functions, government officials and law enforcement officers were given immunity from personal civil prosecution. It protects officials who make reasonable, but mistaken, judgments.  
A real-life example would be when a SWAT team fired tear gas into a plaintiff’s home, causing damage. The 9th Circuit Court of Appeals found that the plaintiff’s 4th Amendment rights had been violated. However, it granted Qualified Immunity to the individual officers in the SWAT team.  
The White House said it would not support legislation that removes Qualified Immunity from law enforcement. Attorney General William Barr indicated that he would not support proposals to scale back Qualified Immunity. Republican Senator Tim Scott introduced the Justice Act, addressing police reform, but not abolishing Qualified Immunity. Senator Chuck Schumer promised that Scott’s bill would not even make it to the floor for debate. Democrat Senator Cory Booker, Democrat Congresswoman Ayanna Pressley, and Libertarian Congressman Justin Amash have introduced legislation to end Qualified Immunity.   
President Trump’s Executive Order, Safe Policing for Safe Communities, is a significant course of action curtailing certain problem issues within law enforcement while maintaining Qualified Immunity.  
Colorado Governor Jared Polis recently signed into law the Enhanced Law Enforcement Integrity Act, which ended Qualified Immunity. Coloradans may sue individual law enforcement officers, sheriff’s deputies, and State Patrol officers, for monetary damages in civil court.       
SCOTUS originated Qualified Immunity almost 50 years ago. Anti-police organizations and leftists want to abolish it, allowing law enforcement officers to be personally sued for monetary damages. Qualified Immunity does not waive individual criminal court penalties, only civil court penalties, a distinction often ignored.  
The Floyd family attorney declared that he is filing a civil monetary lawsuit against everybody involved in the death. There is reportedly up to $1 million pension benefits of the officers, which could be awarded in a civil case. 
The United Nations was contacted by the Floyd family lawyer. The UN has zero jurisdiction in this. Requests among the eleven articles in the letter include a demand to end Qualified Immunity, and that all four of the officers be charged with first-degree murder. Floyd’s sister, Philorise Floyd, started a “Go Fund Me” page which raised $1.156 million on the first day.
Polls show that most voters feel that law enforcement should be updated so that tragedies like what happened to George Floyd will not be repeated; and 'bad apples' are eliminated. 
Qualified Immunity has become a political hot potato. Law enforcement officers make split-second decisions. If performing challenging duties puts officers at risk for losing home, pension, and savings, retaining and attracting quality people to the profession will become exceedingly problematic.  

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If perfection were a requirement for becoming (or remaining) a police officer, we would be in big trouble. If you know anyone who is perfect, please introduce them to me. I would like some lessons.
Thank you for keeping us informed with succinct but thorough comments on current "tragedies" taking place in our government while we are all locked up. Great work, Darlene.
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Darlene Casella was before retirement an English teacher, a stockbroker, and president/owner of a small corporation.  She lives in La Quinta, California and can be reached at