MCN/USA TODAY Network: Reconsidering qualified immunity in the wake of George Floyd

Matthew T. Mangino
MCN/USA TODAY Network
April 9, 2021

Derek Chauvin is on trial in Minnesota for murder.  The former Minneapolis police officer was video-taped with his knees on the neck and back of George Floyd as he laid face down on a city street with his hands cuffed behind his back.

In the wake of nationwide protests after Floyd’s at the hands of the police, the doctrine of qualified immunity has come under increasing scrutiny. Qualified immunity shields government officials from liability for their conduct.

According to the American Bar Association, Floyd’s death, and the national turmoil that followed, made qualified immunity—a relatively unknown concept—an issue of national importance.

This obscure legal doctrine, once known only to civil-rights lawyers and legal scholars, is seen on signs at protest and on newspaper headlines across the country.

A federal lawsuit against police misconduct known as a “1983” action (named for the section of the Civil Rights Act 42 U.S.C. 1983), grants civilians the ability to sue state and local police for violating their constitutional rights. Interestingly, the statute does not mention qualified immunity.

Qualified immunity came about in a series of Supreme Court decisions finding that government officials will afraid to do there job if they are worried about getting sued.

Starting in 1967, the Supreme Court carved out a “qualified immunity” exception that provided police officers could not be sued if they were acting in good faith and didn’t know what they were doing was illegal.

Over the years, the court expanded the doctrine to the point that even police officers who knowingly violate someone’s constitutional rights are protected—unless a court has, in a previous case, ruled that the behavior was unconstitutional.

According to Vox, the Supreme Court justified qualified immunity by finding it ensures that the stresses of litigation won’t divert “official energy from pressing public issues,” and that concerns about being sued won’t deter “able citizens from acceptance of public office.”

Last summer, Colorado established a litany of policing reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses.  The Enhance Law Enforcement Integrity Act also eliminates qualified immunity. 

Now police officers in Colorado who violate a person’s civil rights can be held personally responsible in state court.

 “Colorado has passed what is, for the moment, the gold-standard reform,” Robert McNamara, a senior attorney at the Institute for Justice, a libertarian non-profit, told Forbes. “These laws are changing the status quo as to when there are consequences for bad behavior.”

The New Mexico Civil Rights Act, recently signed into law, eliminated qualified immunity. The law is a product of the New Mexico Civil Rights Commission, authorized by Gov. Lujan Grisham in the summer 2020 special session to evaluate potential statutory changes or policy recommendations, again, in the wake George Floyd’s death.

The George Floyd Justice in Policing Act of 2021 is a civil rights and police reform bill passed by Democrats in the U.S. House of Representatives on February 24, 2021. The bill passed the House on a mostly party-line vote of 220–212, and has been sent to the Senate.

The legislation aims to, among other things, enhance accountability for police officers who commit misconduct, by restricting the application of the qualified immunity doctrine for local and state officers.

In Maine, Bill 214, “An Act to Eliminate Qualified Immunity for Police Officers,” is modeled after the Colorado law. The bill would eliminate qualified immunity in the state. A number of other states are taking a close look at qualified immunity. Finally, the time has come to right a wrong.

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