Abolishing Qualified Immunity in the Era of George Floyd: Is it Enough?

(Source: CNN)

By Isabela Baghdady
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Isabela Baghdady is a freshman in the College of Arts and Sciences at the University of Pennsylvania with plans to study Political Science and History.

On May 25, 2020 the death of George Floyd, a 46-year-old Black man, sparked protests across the nation. After released footage showed Minneapolis police officer Derek Chauvin, a White man, kneeled on Floyd’s neck for almost nine minutes while he was in police custody, thousands of Americans took to the streets to demand racial justice and police reform [1]. Floyd’s now immortalized plea—”I can’t breathe”—has since become a symbol for African American repression under the structural racism embedded in the United States legal system.

Over the summer of 2020, legislative attempts at police reform ultimately failed due to partisan polarization and election-year tensions [2]. But now, almost 10 months after Floyd’s death, Congress has revived action against systemic racism in law enforcement with the George Floyd Justice in Policing Act (H.R. 1280), which passed the House last summer but failed in the Senate [2]. Reintroduced by Representatives Karen Bass (D-Calif.) and Jerry Nadler (D-N.Y.), the bill was passed by the House again on March 4th, 2021 with a mostly partisan vote of 220-212. Only two Democrats, Jared Golden (Maine) and Ron Kind (Wis.), voted against it, while one Republican, Lance Gooden (Tex.) claimed to have mistakenly voted for the bill [2].

In addition to banning chokeholds, establishing data collection on police encounters, and forming new training to mitigate racial profiling, the bill notably abolishes what is known as “qualified immunity” for law enforcement [3].

What is Qualified Immunity?
Qualified immunity is considered a safeguard for government officials against legal liability for violations of constitutional rights. Although it is commonly related to cases involving police misconduct, qualified immunity protects not only law enforcement officers, but all government officials [4].

Qualified immunity originated in the 19th century to grant immunities to government officials who were sued for “common law torts,” or wrongdoings that violate judicial law [5]. The modern-day understanding of qualified immunity dates back to the landmark Supreme Court case Harlow v. Fitzgerald (1982), where the Court defined the purpose of qualified immunity as establishing a balance between holding government officials accountable and diverting energy away from important public issues [4]. With Harlow, the Court held that in order to bypass qualified immunity, a plaintiff must prove that the government officer in question violated a “clearly established” law [4].

However, new applications of the law since Harlow have resulted in greater deference to government officials. First, the need to prove that an official violated “established law” has translated into requiring the plaintiff to invoke an existing precedent [4]. In other words, officers are essentially protected by qualified immunity in all cases involving civil rights violations that lack a judicial precedent. Second, in Pearson v. Callahan (2009), the Court further increased protections for government officials by allowing qualified immunity to be granted prior to considering whether or not a constitutional right had been violated. Lastly, by holding officers to the ambiguous standard of  “any reasonable officer,” the Court  leaves room to excuse government officials for their ignorance of “established law,” making it more difficult for the plaintiff’s case to move past qualified immunity [4].

Qualified immunity is a topic of debate among law experts, judges, policymakers, and civil rights activists. Supreme Court Justice Clarence Thomas, an originalist, has criticized the modern-day application of qualified immunity for being too “free-wheeling” and deviating too far from the 19th century immunities granted for common law torts [4]. Thomas has argued that the Court should only grant immunity to government officers who would have also been granted immunity for a “tort analogous to the plaintiff’s claim” in the 19th century [4]. Other legal experts have voiced concerns that qualified immunity inhibits the development of constitutional law over time. Still others, such as Justice Sonia Sotomayor, have argued that instead of creating a balance, qualified immunity only favors government officials by acting as an “absolute shield for law enforcement officers” [4].

Qualified Immunity and the George Floyd Justice in Policing Act
Qualified immunity is not an explicit issue in the George Floyd case against Derek Chauvin and the three other police officers charged in Floyd’s death, yet it still plays an important role in the discussion surrounding police reform [4]. By eliminating qualified immunity for law enforcement officers, the George Floyd Justice in Policing Act takes a step towards holding police officers accountable for their role in preserving a system that disproportionately targets minorities.

With President Biden’s support of the bill, a statement from the White House said, “To make our communities safer, we must begin by rebuilding trust between law enforcement and the people they are entrusted to serve and protect. We cannot rebuild that trust if we do not hold police officers accountable for abuses of power and tackle systemic misconduct—and systemic racism—in police departments” [2].

However, some have argued that the bill does not go far enough in abolishing qualified immunity. First, although the bill eliminates qualified immunity for law enforcement officers, it remains intact for all other government officials—from social workers, to prison guards, to medical board officials [6]. Thus, by excluding only law enforcement workers, the bill essentially affirms the right to qualified immunity for all other government employees besides police officers. In response to this criticism, Massachusetts Representative Ayanna Pressley and Senators Edward Markey and Elizabeth Warren, who are all Democrats, presented the Ending Qualified Immunity Act on March 1, a separate bill that would officially eliminate qualified immunity for all local and state officials, although not federal employees [6]. Although this bill has yet to come to a vote, some moderate Democrats have already voiced concerns that the measure is being introduced too soon after the George Floyd Justice and Policing Act, and will only hurt their chances of reelection and cooperation with conservatives [7].

Another criticism of the bill is that it maintains a “loophole” that currently prevents American citizens from suing federal officials accused of violating their constitutional rights, despite federal law allowing for civil rights lawsuits against local and state officials [6]. Because the consideration of the lawsuit precedes discussion surrounding qualified immunity, the plaintiff’s lawsuit is rejected, despite the new provisions of the George Floyd Justice in Policing Act [6]. Thus, the new bill would not make any progress towards allowing citizens to sue federal government officers in cases of civil rights violations.

In spite of these limitations, the George Floyd Justice in Policing Act is an important step towards dismantling the inherent racism embedded in the U.S. legal system. However, whether or not the bill will pass the evenly divided Senate—where it will need at least ten Republican votes and a filibuster is likely—remains uncertain [2]. The Senate already voted against the bill last summer, and many Republicans have voiced concerns that the bill will debilitate the functioning of law enforcement [2]. Until then, there remains hope that the newly elected Congress can overcome partisan politics to establish a bill that seeks to realize the promise of equality for all Americans.

Infographic Quote: “By eliminating qualified immunity for law enforcement officers, the George Floyd Justice in Policing Act takes a step towards holding police officers accountable for their role in preserving a system that disproportionately targets minorities.” 

References:
1. Cheung, Helen. “George Floyd Death: Why US Protests Are So Powerful This Time.” BBC News. June 8, 2020. bbc.com/news/world-us-canada-52969905.
2. Sonmez, Felicia and Colby Iktowitz. “House Passes Expansive Policing Overhaul Bill Named in Honor of George Floyd.” Washington Post. March 3, 2021. washingtonpost.com/politics/george-floyd-police-reform-bill-vote/2021/03/03/5ea9ba3a-7c6c-11eb-85cd-9b7fa90c8873_story.html.
3. “House Passes H.R. 1280, The George Floyd Justice in Policing Act.” Congressman Jerry Nadler of New York. March 4, 2021 nadler.house.gov/news/documentsingle. aspx?DocumentID=394557#:~:text=The%20George%20Floyd%20Justice%20in%20Policing%20Act%20of%202021%3A,profiling%20for%20all%20law%20enforcement.
4. Sibilla, Nick. “House Passes New Bill to Abolish Qualified Immunity for Police.” Forbes. March 4, 2021. forbes.com/sites/nicksibilla/2021/03/04/house-passes-new-bill- to-abolish-qualified-immunity-for-police/?sh=63526bc72daf.
5. “Types of Law: Criminal, Civil, Tort, Statutory, Common, and Intellectual Property.” Lumen Learning. courses.lumenlearning.com/introbusinesswmopen/ chapter/reading-criminal-versus-civil-law/.
6. Sobel, Nathaniel. “What Is Qualified Immunity, and What Does It Have to Do With Police Reform?” Lawfare Institute. June 6, 2020. lawfareblog.com/what-qualified- immunity-and-what-does-it-have-do-police-reform.
7. Johnson, Jake. “To 'Ensure Justice and Accountability for Police Brutality,' Pressley Leads New Bill to End Qualified Immunity.” Common Dreams. March 1, 2021. commondreams.org/news/2021/03/01/ensure-justice-and-accountability-police-brutality-pressley-leads-new-bill-end.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.