Nationwide protests against police violence are still persisting more than a week after George Floyd died while taking a knee to the neck by a Minneapolis police officer. His death has ignited more than just protests and riots—the ongoing debate on a Supreme Court-made legal doctrine that insulates police officers from civil liability has reached a crescendo among the unrest.
That doctrine, known as "qualified immunity," shields government officials from liability for damages claims for harm caused by their actions as they perform official duties even if those actions violated the U.S. Constitution but did not contravene a "clearly established" rule. The "clearly established" rule concept, which is seen to be problematic by critics of the doctrine, requires the party suing the official to show that the facts in their case were sufficiently similar to the facts in prior court cases.
There are several qualified immunity cases, which are seeking review, pending at the Supreme Court and legal experts are hoping that the Floyd case would act as a catalyst to encourage the justices to revisit the doctrine. The top court could decide whether to take up any of those cases as early as next Monday, stemming from discussions made in this Thursday's conference.
"There are eight cases set for this Thursday conference. It's the second time this set of cases has been relisted, which is certainly a signal of interest that at least someone on the court is at least somewhat interested in the issue," Robert McNamara, senior attorney for the Institute for Justice, told The Epoch Times. The Institute for Justice runs a Project on Immunity and Accountability that aims at challenging the qualified immunity doctrine and restoring accountability for officials' misconduct.
The rationale behind the doctrine is to afford government officials protection from undue interference and threats of liability while they perform their duties. It is meant to protect all but "the plainly incompetent or those who knowingly violate the law."
"Qualified immunity is a failure—it is a failure as a matter of policy, it is a failure as a matter of law, and it is a failure as a matter of basic morality," McNamara said.
McNamara and other critics see the doctrine as a free pass for police officers and other government officials to violate constitutional rights without having to face the legal consequences of the actions.
"The entire point of having constitutional rights is that they be enforced. Having a doctrine that says your rights may well have been violated, but we're going to choose to do nothing about it, turns the constitution into an empty promise," McNamara said.
Problems with the 'Clearly Established Law' TestThe courts embark on a two-prong test when deciding when to grant qualified immunity to a government official. They first have to decide whether a constitutional violation had occurred and secondly, whether the right was clearly established.
Legal experts say many cases fail the "clearly established" barrier as it is not easy to show that the conduct and circumstances in the current case are sufficiently similar to ones in another previous case.
Using the Floyd case as an example, Neily said that if his family wants to sue the officer who had kneeled on him, they would have to find an existing case in the 8th Circuit Court that held that a police officer must not kneel on an "unresisting suspect’s neck, ignoring his pleas for help, until he passes out."
"If no such case happens to be on the books, their case will be summarily tossed out of court," Neily wrote.
McNamara said he believes this test has turned the inquiry into constitutional cases "into almost a farce."
"Lower courts engage in this kind of mechanistic quest to find another published federal opinion in which exactly the same facts have occurred, which is frequently impossible to do because the world is complicated and no two cases will have exactly the same facts," he said. "As a result, the outcome of these cases is essentially arbitrary."
The doctrine has been criticized by people on both sides of the aisle. Many legal circles, advocacy groups, and members of the judiciary, including Supreme Court justices Clarence Thomas and Sonia Sotomayor, have also raised concerns about its application.