We talked a good bit about qualified immunity last summer. It’s a Supreme Court-created doctrine that holds that public officials can only be held civilly liable for violating an individual’s constitutional rights if the exact, and this is very narrowly defined, action has been “clearly established” as unconstitutional in a previous judicial decision. Examples of qualified immunity in use include Thompson v. Copeland, in which a police officer was shielded from a civil suit in which he pointed a gun at the head of an apparently unarmed suspect and threatened to kill him because the crime for which the suspect was being investigated was a felony, and pointing a gun at the head of an apparently unarmed suspect had only previously been defined as unconstitutional in a misdemeanor trial. The impact of qualified immunity is hard to quantify, because it stops a lot of cases from even being taken to court in the first place, but it’s a clear obstacle between American citizens and their constitutional rights.
Some good news on it in the last few weeks:
First, the Supreme Court rejected a qualified immunity defense last week in McCoy v. Alamu, holding that it was not a valid defense for a correctional officer who sprayed an inmate with pepper spray without provocation from that inmate. This echoes a decision last fall that I, at least, personally missed, in which the Supreme Court made a similar ruling in Taylor v. Riojas, in which a prisoner was made to spend six days in conditions including a cell full of feces.
Second, the George Floyd Justice in Policing Act, which the House passed yesterday, would reportedly reform qualified immunity by changing a passage in the federal law on abuse of power from prohibiting “willfully” violating constitutional rights to prohibiting “knowingly or recklessly” violating constitutional rights, legally changing the standard to which public officials are held such that intent is no longer required for the constitutional violation to be illegal, with awareness of one’s actions instead required. The bill would also reportedly stop officers from being eligible for qualified immunity defenses.
I have no idea what the act’s chances are in the summer. I haven’t looked into the rest of the act in much detail yet. But qualified immunity remaining in the conversation is a good sign for the Constitution, and for the protection of Americans’ constitutional rights.
