As more and more Americans take to the streets in anger over George Floyd’s killing, the calls for transparency, accountability and justice are growing too. But while the officer who killed him has been charged with second-degree murder and faces jail time, one doctrine could easily shield the officers from being held accountable for civil rights violations of excessive force and deny his family the damages they deserve. 

The Supreme Court’s judicial activism has made it nearly impossible to hold the government accountable. Instead of protecting the civil rights of Americans, the court decided to shield those who infringe upon them from accountability by granting them “qualified immunity” — a legal doctrine that protects people working under the authority of the government from civil rights lawsuits.

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The problem with this doctrine is that the threshold is too high for victims to meet. Victims must prove that their constitutional right was violated and that the right was “clearly established.” At first glance, this threshold doesn’t sound difficult to meet. It’s obvious that Americans have an established right not to be murdered without reason by a police officer, right? Believe it or not, the courts don’t think it’s that simple.

To prove that the violated right was “clearly established,” the court requires victims to provide prior cases from “the same jurisdiction with nearly identical facts,” in which the court held that the action in question was a violation of rights. If no such case exists, the case is thrown out. 

As Clark Neily, Cato’s vice president for criminal justice, explained in Cato’s blog, “If Mr. Floyd’s family wants to sue the officer who took his life, they will need to find an existing case from the 8th U.S. Circuit Court of Appeals holding that a police officer may not kneel on a unresisting suspect’s neck, ignoring his pleas for help, until he passes out. If no such case happens to be on the books, their case will be summarily tossed out of court.”

Courts have increasingly ruled in favor of police officers accused of using excessive force in the last decade. In fact, according to a Reuters investigation, courts granted qualified immunity in more than half of the excessive force cases in which it was invoked from 2017-2019. In at least three dozen cases, courts found that the police violated the rights of the victims — but granted the officers qualified immunity anyway.

In one case, the 11th Circuit granted qualified immunity to a deputy sheriff who accidentally shot a child while in the process of trying to shoot a pet dog that wasn’t even posing a threat. Officers had stumbled into a backyard while they were looking for a suspect, and they demanded that everyone in the yard get on the ground. According to court documents, the deputy discharged his gun twice at the family’s dog “without necessity or any immediate threat or cause.” The second shot hit the knee of a 10-year-old who was laying face down, 18 inches from the deputy. The child suffered severe pain, mental trauma, and required ongoing care from an orthopedic surgeon. 

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The child’s mother filed a civil rights lawsuit against the deputy seeking damages to compensate for her son’s medical bills. Because no existing case dealt with this exact situation, the court held that the officer did not violate a “clearly established” right. The case was dismissed.

If this sounds unjust — it’s because it is.

The Supreme Court is supposed to protect the rights of citizens, not give public officials a free pass to violate them. Qualified immunity standards delegitimize the criminal justice system by creating a two-tiered system: One for the political class, and one for everyone else. If it’s true that no one should be above the law, then it’s high time the Supreme Court abolishes qualified immunity.

Lindsay Marie is a criminal justice policy analyst for the Lone Star Policy Institute, an independent think tank that promotes freedom and prosperity. You can follow her on Twitter @LindsayMarieLP.

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