The State Of The Struggle To Reform Qualified Immunity

Struggle To Reform Qualified Immunity
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In the aftermath of the killing of George Floyd by Minnesota police officer and resulting nationwide protests in 2020, many hoped that these tragic events would generate political momentum for abolishing or at least severely curtailing qualified immunity, the judicially created legal doctrine that shields law enforcement officers and other government officials from most liability for violating constitutional rights.

Sadly, after some initial success, reform efforts seem to have largely stalled at the state level, and the Supreme Court has recently signaled it may be unwilling to pursue more than a very modest revamping of the doctrine.

Qualified immunity exempts government officials from most civil liability for violations of constitutional rights unless there is "clearly established" precedent indicating that what they did was illegal. All too often, courts interpret "clearly established" so narrowly that officers routinely get away with horrendous abuses merely because no federal court in their area has previously decided a case with essentially identical facts.

The doctrine has been severely criticized by leading legal scholars, such as Joanna Schwartz, and co-blogger Will Baude.

The Institute for Justice (IJ), a public interest law firm that has helped lead the fight to abolish QI, recently put out two notable publications assessing the state of QI reform. Both are must-reads for those who follow this issue.

The first, 50 Shades of Government Immunity, by Kendall Morton and Megan Cairns, provides an overview of the state of official liability for rights violations in all 50 states, as well as the District of Columbia and various US territories.

The second, an article by IJ attorneys Patrick Jaicomo and Anya Bidwell, is an analysis of recent Supreme Court precedents relevant to QI and what they portend for the future. Jaicomo and Bidwell are much more optimistic about the Supreme Court than Morton and Cairns are about the states. Read more.

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