I first heard about it way back during the Ferguson protests. But after the death of George Floyd, people were showing up at protests with signs that said “End qualified immunity.” I remember just shaking my head and thinking, “Wow, how did that go mainstream?” Five years ago, I could only have a conversation about it with, say, an academic.
Let’s talk about how this qualified immunity doctrine started in the first place. My understanding is this a constitutional protection, but it’s not in the Constitution. It was created by the Supreme Court. Can you explain how we started talking about police use of force and thinking about how we deal with it at the civil level?So Congress, back in the 1800s, believed that citizens should be able to sue individual government workers who have violated somebody’s constitutional rights.
After qualified immunity was created by the Supreme Court, it started to be used as a defense in state courts too. The doctrine doesn’t mean police officers can’t be sued, just that they just have a decent legal defense once they get in front of a judge. There’s one more twist: In the 1980s, a Supreme Court ruling stated police should only be convicted if their behavior violates a clearly established precedent.
For a long time, qualified immunity drew the attention of criminal justice reform advocates and pretty much no one else. But that changed after George Floyd was murdered by a police officer in 2020. For a moment, lawmakers around the country started taking a closer look at how they could limit the way this doctrine was used.More than two dozen states introduced bills to either end or limit the use of qualified immunity in their state courts after Floyd was killed.
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