Five years after George Floyd's death, calls to reform qualified immunity mostly fall silent
WASHINGTON — The death of George Floyd at the hands of a police officer in May 2020 gave momentum to a cross-ideological effort to reform the legal defense known as "qualified immunity," which can protect cops even when they have violated the Constitution.
Bills were introduced in Congress calling to abolish the defense.
Multiple cases piled up at the Supreme Court urging the justices to intervene.
Much ink was spilled.
And then, nothing happened.
With the fifth anniversary of Floyd's death approaching this weekend, Congress still has not passed any legislation seeking to even reform, let alone abolish, qualified immunity. The Supreme Court has rejected dozens of cases asking it to do the same.
What minor changes have occurred, via court rulings or state legislative actions, have had little practical impact on a nationwide basis.
For Karen Blum, a professor at Suffolk University Law School in Boston and a long-term critic of qualified immunity, the situation is nothing short of depressing.
"After George Floyd, it was the first time I was actually optimistic and very positive that something would be done, no matter how little," she said. "But nothing, I mean nothing, has happened."
The doctrine, first adopted by the Supreme Court in 1967, gives government officials the benefit of the doubt when they violate the Constitution.
When a plaintiff files a federal civil rights claim, the defendant — including police officers facing excessive force claims under the Constitution's 4th Amendment — can get off the hook by arguing that it was not "clearly established" at the time of the alleged violation that its actions were unconstitutional. If qualified immunity is granted, the lawsuit is dismissed and the plaintiffs never get a chance to either negotiate a settlement or go to trial.
In 2020, a Reuters investigation found that judges were increasingly granting qualified immunity at the direction of the Supreme Court.
The law enforcement community strongly defends the concept, saying it is needed to give officers acting in good faith the confidence to make split-second decisions, often in extremely dangerous circumstances.
The Fraternal Order of Police, a national group representing law enforcement officers, did not respond to requests for comment.
Floyd's killing by Derek Chauvin, a Minneapolis police officer, triggered an immediate national debate over police violence, especially against Black men.
But there had already been a quiet cross-ideological effort before then to reform qualified immunity, backed by such strange bedfellows as the left-leaning American Civil Liberties Union and the libertarian Cato Institute. They had filed briefs at the Supreme Court hoping to persuade the justices to take a new look at the doctrine and consider amending it — or maybe ditching it altogether.
For a few weeks in the summer of 2020, as racial justice protests raged, both the Supreme Court and Congress considered whether to take action.
The court quickly sidestepped the issue, declining in June 2020 to hear a series of cases asking for reconsideration of qualified immunity.
Ten days later, the Democratic-controlled House of Representatives passed The George Floyd Justice in Policing Act, including a number of police reform measures on qualified immunity and other issues. But it ran into headwinds in the Republican-controlled Senate and lost momentum.
"Republican intransigence was the real explanation there, and I don't see any reason to think that has changed for the better," said Clark Neily, a lawyer at the Cato Institute.
Rep. Hank Johnson, D-Ga., who was a co-sponsor of the George Floyd legislation, said that there were plans to reintroduce it during the current Congress but that he has "no confidence" it would get any traction with Republicans controlling both chambers.
"We will get to a time in this country where we will pass that legislation," he said.
In the meantime, courts have continued to grant cops and other government officials qualified immunity in cases involving shocking claims:
Police officers assisting a paramedic in Fresno, California, held a man in a prone position until he died, even after he told them he could not breathe.
Police officers in Pineville, North Carolina, fired multiple shots at a man who was complying with their orders to drop a firearm.
Prison officers at a facility in Columbia, South Carolina, failed to intervene when two men murdered four of their fellow inmates.
However, there have been small signs of incremental change.
Some judges have criticized the way qualified immunity has been applied, joining a handful who had done the same before 2020. That approach has seeped into some recent rulings, those following the case law say.
Chris Balch, a lawyer in Georgia who represents police departments in such cases, said the thumb on the scale in favor of officers "has lessened in the last five years," meaning defense lawyers need to be ready to go to trial.
He cited a January 2024 ruling by the Atlanta-based 11th U.S. Circuit Court of Appeals that denied qualified immunity to a jail intake officer after a Black inmate who had disclosed he stabbed a white man for racially motivated reasons then murdered his white cellmate.
There was also a glimmer of hope for reform advocates at the Supreme Court, which in November 2020 ruled in favor of a Texas prison inmate who had been held in filthy conditions. The justices overturned a lower court that said qualified immunity protected prison officials.
After reform efforts failed in Congress, there was briefly a concerted effort to enact state-level legislation that would create an alternative way to sue officers under those states' laws, making qualified immunity unavailable as a defense. Although a handful of states enacted such laws, the campaign met with considerable resistance elsewhere.
More recently, President Donald Trump's re-election has in some ways sent the pendulum swinging in the other direction in the national political arena.
When Trump signed a pro-law enforcement executive order last month, he stressed the importance of ensuring officers are not held legally accountable for their actions.
The order says the Trump administration will take action to 'provide legal resources and indemnification to law enforcement officers who unjustly incur expenses and liabilities' and calls on officials to 'strengthen and expand legal protections' for officers.
Harrison Fields, a White House spokesman, said Trump's policing plan shows he is "fulfilling his campaign promise to Make America Safe Again." The administration is committed to reversing "failed policies" backed by Democrats, he added.
With that political environment in mind, Blum, the qualified immunity critic, remains pessimistic there will be any major change any time soon.
"Qualified immunity is here to stay," she said.
This article was originally published on NBCNews.com
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San Francisco Chronicle
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Time Magazine
an hour ago
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Newsweek
an hour ago
- Newsweek
Supreme Court Doesn't Have 5 Votes To Uphold Birthright Citizenship: Ex-AG
Based on facts, either observed and verified firsthand by the reporter, or reported and verified from knowledgeable sources. Former U.S. attorney general Alberto Gonzales during an interview on Sunday speculated that the Supreme Court ruled against nationwide injunctions in a landmark case as a compromise after failing to secure five votes on the issue of birthright citizenship. Gonzales, who served in former President George W. Bush's administration, admitted that he had no basis for his speculation, but found it interesting that the court declined to rule ono the "substantive issue" of birthright citizenship put before the justices. Why It Matters President Donald Trump issued an executive order in February to end birthright citizenship, which is granted under the 14th Amendment of the U.S. Constitution and explicitly grants citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." Trump has argued that the amendment as been misinterpreted and that the federal government has the authority to restrict birthright citizenship through executive action. However, the case of Trump v. CASA focused on whether judges have the authority to issue the nationwide, or universal, injunctions that blocked Trump's order from implementation. The administration has complained that federal judges have overreached by issuing orders that apply to all parties instead of only the aggrieved parties. What To Know The Supreme Court on Friday issued an opinion authored by Justice Amy Coney Barret that severely limited the scope and qualification for federal judges to issue nationwide injunctions and sidestepped making any ruling on the issue on the issue of birthright citizenship itself, instead pushing that decision back to October when the next session for the court commences. Gonzalez, speaking with CNN's Fareed Zakaria at the Aspen Ideas Festival in Colorado on Sunday, speculated that the landmark ruling occurred as a compromise after the judges failed to come to any consensus over the substantive issue of birthright citizenship itself. Chief Justice of the Supreme Court John Roberts (L), along with Associate Justices (L-R) Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson (back) stand in the House of Representatives ahead of... Chief Justice of the Supreme Court John Roberts (L), along with Associate Justices (L-R) Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson (back) stand in the House of Representatives ahead of US President Joe Biden's third State of the Union address to a joint session of Congress in the House Chamber of the US Capitol in Washington, DC, on March 7, 2024. INSET: Former Attorney General Alberto Gonzales speaks about Attorney General William Barr and the Mueller Report during the American Bar Association's (ABA) Young Lawyers Division 2019 Spring Conference, on May 3, 2019 in Washington, DC. More Shawn Thew/POOL/AFP via Getty Images //"It is possible that the court took this case to decide the substantive issue," Gonzales said. "As they negotiate what the opinion should read, they discover they don't have five votes either way, and so as a result of that, they decide to punt the substantive issue and deal only with it with a nationwide injunction." When asked if that meant he believed the court was deadlocked on the issue of birthright citizenship, Gonzales said, "It's pretty obvious. Well, it seems obvious to me." "It seems pretty obvious to me, and I think that there are at least five votes to affirm that, and perhaps the only way to get this opinion out was to carve away the substantive issue and deal only with this issue," he said, referring to nationwide injunctions. Former U.S. attorney general Sally Yates, who served during former President Barack Obama's administration, chimed in to say that "if we don't have five votes on this [issue], we're all in really big trouble." This would mean that the court has at least one justice who is unable to commit to either upholding or rejecting birthright citizenship, leaving the other justices unable to secure a majority opinion and rule on the issue. As many as four justices could have otherwise sided with either position on the issue. The idea that the justices make compromises on cases in order to advance certain positions is one that has been widely discussed, even as the justices try to dissuade any suggestion of dealmaking. In the book Nine Black Robes: Inside the Supreme Court's Drive to the Right and its Historic Consequences, CNN's Chief Supreme Court analyst Joan Biskupic discussed how the Chief Justice John Roberts and Justice Anthony Kennedy had worked together to advance cases that created offsetting opinions on the issue of gay rights. Roberts joined Kennedy in saying that a gay couple in Arkansas could not be prevented from being named on their baby's birth certificate (the landmark Obergefell v. Hodges), while Kennedy would support bringing a case about a cake store refusing to make a wedding cake for a gay couple before the court. Biskupic wrote, in part: "In many instances, law clerks know about a deal struck between justices. But in others, only the two justices involved truly know. Sometimes various chambers have dueling accounts of what happened, or individual justices remain baffled about why a colleague voted the way he or she did in the end." In a rare insight into the chief justice's thinking, Roberts spoke over the weekend at a judicial conference in conversation with the chief justice of the 4th Circuit Court of Appeals following the ruling in Trump v. CASA, specifically about criticism the justices face after publishing and announcing their rulings. "It would be good if people appreciated it's not the judges' fault that a correct interpretation of the law meant that, no, you don't get to do this," Roberts said, adding, "You'd like it to be informed criticism, but it's usually not. They're naturally focusing on the bottom line: who won and who lost. You need to appreciate that that's just the nature of what you do." What People Are Saying President Donald Trump wrote on Truth Social, in part: "GIANT WIN in the United States Supreme Court! Even the Birthright Citizenship Hoax has been, indirectly, hit hard. It had to do with the babies of slaves (same year!), not the SCAMMING of our Immigration process. Congratulations to Attorney General Pam Bondi, Solicitor General John Sauer, and the entire DOJ." Professor Samuel Bray, in a previous statement sent to Newsweek: "Given that the birthright-citizenship executive order is unconstitutional, I expect courts will grant those preliminary injunctions, and they will be affirmed on appeal. I do not expect the President's executive order on birthright citizenship will ever go into effect. Today's decision is a vindication and reassertion of the proper role of the federal courts in our constitutional system." John Eastman of the Claremont Institute in a previous statement to Newsweek: "I am troubled by the outright falsehoods in the dissenting opinions regarding the claim that Trump's EO is 'patently unconstitutional' and a violation of long-settled law. My brief in the case points out a number of those falsities. And I'm sure we'll have more opportunity to do so as the case now progresses on the merits." What Happens Next The Supreme Court is expected to revisit the case of birthright citizenship in October when the next session of the court commences.
