Ending the practice of qualified immunity has been called for by advocates and demonstrators across the country in recent days and is a critical next step in moving towards effective policing reforms. Currently, qualified immunity allows courts to dismiss cases against officers who have committed unnecessary acts of force. The one exception is if there is particular precedent, or an exact example, of another court holding an officer liable. But the specificity required by the court is absurd because the nature of exigent circumstances is unpredictability. Indeed in many circumstances, this requirement allows bad actors to remain in positions of power.
Countless stories have surfaced recounting police officers who have violated individuals’ rights and used excessive force while protected by qualified immunity. This is particularly upsetting when you recall that police officers are expected to protect the civil liberties of all citizens, particularly those who are arrested or accused of a crime. Indeed, a suspect in custody is still, foremost, a citizen who remains innocent until proven guilty. While most law enforcement officers take the motto “to protect and serve” to heart, many citizens –– especially amid communities of color –– believe policing has changed and taken on a more militaristic tone. With the practice of qualified immunity intact as well, it is fair to question police departments’ priorities.
Prior to George Floyd’s death, there were eight distinct cases that could have been reviewed by the United States Supreme Court, but unfortunately none of those cases  will be heard. While it is disappointing that the Supreme Court will not review qualified immunity, other paths to reform exist. Federal lawmakers have several opportunities in this Congress to carry reforms across the finish line.
Introduced  in both the House and the Senate, the Justice in Policing Act of 2020 includes many measures meant to improve police accountability –– including ending qualified immunity. In addition, a bipartisan, stand-alone bill  –– The Ending Qualified Immunity Act –– now has more than 50 sponsors. More bills addressing policing reforms, specifically qualified immunity, are expected in the coming days. This is an excellent start, and will hopefully institute policing reforms that encourage law enforcement officers to fulfill their promise to protect and serve.
While some believe that qualified immunity is necessary for police officers to be able to do their jobs and that it protects officers who are forced to make split second decisions, it also removes too much responsibility.
Ending, or strictly limiting, qualified immunity would ideally prompt officers to take more care when using force or making discretionary choices. Legislators should address this issue now, while the issue of police reform is still in everyone’s minds. While more reforms are certainly needed to ensure the effectiveness of police, this would be a promising start that could save lives down the line.
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- “none of those cases”: https://www.npr.org/2020/06/15/876853817/supreme-court-will-not-re-examine-doctrine-that-shields-police-in-misconduct-sui
- “Introduced”: https://judiciary.house.gov/uploadedfiles/fact_sheet_justice_in_policing_act_of_2020.pdf
- “bill”: https://www.congress.gov/bill/116th-congress/house-bill/7085