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Qualified Immunity: An Overview of the Issues

Qualified immunity has come under heavy fire in recent months. Read about what it is and how it negatively affects citizens.

The Basics:

Qualified immunity is defined by Cornell Law School as “protect[ing] a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.”

Qualified immunity says that an officer cannot be put on trial unless:

  1. The evidence shows that the conduct was explicitly unlawful

  2. A previous court case exists deeming similar police actions to be illegal

In short, if someone feels as if their rights have been violated by the actions of a police officer, unless the right is explicitly stated either in the constitution or formally written down elsewhere, an officer can escape liability and face no consequences. Since cases are hardly ever identical, qualified immunity can be brought up in almost every case of police misconduct.

Supreme Court Cases:

There are multiple Supreme Court cases where qualified immunity has been in question. In one case, Malley v. Briggs, the Supreme Court examined immunity for police officers with regard to acting on the terms of a faulty warrant. It was determined that “qualified immunity does not apply to a police officer when the officer wrongfully arrests someone on the basis of a warrant, if the officer could not reasonably believe that there was probable cause for the warrant.” Malley v. Briggs also established that qualified immunity provides protection "to all but the plainly incompetent or those who knowingly violate the law.” In short, qualified immunity comes into play whenever an officer commits an act that violates a right that isn't explicitly stated.

An example of qualified immunity taking place, with regards to police officers, can be seen in the case of Breonna Taylor. Breonna Taylor was sleeping in her home in Louisville on March 13th, 2020, when three officers, Myles Cosgrove, Brett Hankinson and Jonathan Mattingly executed a no-knock search warrant, which alarmed her boyfriend, Kenneth Walker. Walker opened fire on the officers with his legal firearm, believing his home was being invaded. As the officers involved were not in their uniforms and had broken into the home unannounced, there was no distinguishing between them being burglars or officers of the law. Breonna Taylor was shot by one of the officers during an exchange of gunfire. Protected by qualified immunity, Cosgrove, Mattingly and Hankinson have not been charged, and two of them still have their jobs.

Because there is no identical prior case to establish that the officers who killed Breonna Taylor violated “clearly established” law, the officers could be granted immunity by our judicial system and escape accountability.

The Bottom Line:

This is a prime example of how the justice system is failing the American people.

Qualified immunity is focused on protecting officials from the troubles and costs of a trial compared to paying for damages. Not only does it apply to police officers, but qualified immunity pertains to many executive branch officials. This immunity serves as a path for officials to take in order to avoid accountability for their actions, similarly to how Myles Cosgrove, Brett Hankinson, and Jonathan Mattingly are escaping repercussions for the murder of Breonna Taylor.

Although there has been little to no progress made on ending qualified immunity, US Sens. Edward J. Markey (D-MA), Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) introduced the Ending Qualified Immunity Act on July 1, 2020.

“If we want to change the culture of police violence against Black and Brown Americans, then we need to start holding accountable the officers who abuse their positions of trust and responsibility in our communities,” said Markey. “That means once-and-for-all abolishing the dangerous judicial doctrine known as qualified immunity.”

There is hope that in the future, qualified immunity will be dismantled and police officers and officials will be held accountable for their actions.


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