September 03, 2020 Articles

It Is Time to Revisit Qualified Immunity

With recent incidents of police misconduct and a renewed debate on the role of policing and police tactics, the doctrine of qualified immunity for police officers has come under scrutiny.

By David Coyle

With recent incidents of police misconduct rocking the nation and a renewed debate on the role of policing and police tactics, the doctrine of qualified immunity for police officers has come under scrutiny. Under section 1 of the Civil Rights Act of 1871, individuals can sue police officers and other government officials for monetary damages when their federally protected civil rights are violated. Pub. L. No. 42-22, 17 Stat. 13 (1871) (codified as amended at 42 U.S.C. § 1983). The doctrine of qualified immunity shields officers and other government officials from these suits when their conduct does not violate “clearly established” rights. The issue, though, often becomes this: At what level of specificity should “clearly established” law be defined?

On June 15, 2020, over a dissent from Justice Clarence Thomas, the U.S. Supreme Court decided not to grant certiorari on several cases asking them to revisit the qualified immunity doctrine. Baxter v. Bracey, 140 S. Ct. 1862 (2020) (Thomas, J., dissenting from the denial of certiorari). The ball has now been passed to Congress, where some members are eager to take up a debate on changes to the doctrine. If Congress does not act, the Supreme Court should revisit qualified immunity, as it has diverged significantly from Congress’s intent in enacting the Civil Rights Act of 1871.

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