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Minneapolis protests clash with police demanding justice for George Floyd
01:00 - Source: CNN

Editor’s Note: Sina Kian is a constitutional scholar, former clerk to Chief Justice Roberts, and adjunct professor of law at NYU Law School. The opinions expressed in this commentary are those of the author; view more opinion articles on CNN.

CNN  — 

Even though Derek Chauvin and three other officers are facing criminal charges in the death of George Floyd, it would likely be very difficult for Floyd’s family to sue them.

But this isn’t necessarily what the framers of our Constitution envisioned for our justice system. They designed a framework in which constitutional rights would be enforced by lawsuits.

Sina Kian

For most of our country’s history, that was the rule. In more recent decades, however, the Supreme Court has developed a robust doctrine of qualified officer immunity, holding that officers cannot be held liable or even taken to trial unless it was already “clearly established” that the officer’s conduct was unlawful; in practice this usually means there needs to be court precedent that had already found similar police actions to be unlawful.

Right now, multiple separate cases are pending before the court, each asking it to limit or overrule that immunity and hold that police officers can be sued and held accountable for their actions, just as anyone else would be.

Like the protests, they emerge from all parts of the country: Michigan, Tennessee, Texas, Georgia, Idaho, Louisiana and Minnesota.

The court has shown interest by taking the rare step of rescheduling and relisting these cases – holding them for further discussion – at each of its meetings for the past month, some of them for many months; not saying yes, not saying no.

It will consider whether to hear these cases again on Thursday. It should do so.

Officer immunity has little basis in our laws, our history, or our legal traditions. When the Bill of Rights was ratified in 1791, the primary mechanism for enforcing your rights was suing, often in state court. If an officer violated your rights, you would sue the officer under a common law cause of action – this could be for things like assault, battery, trespass or false imprisonment.

Officers could not simply use force or trespass on your property or detain you; instead, they had to demonstrate that their actions were authorized by law and therefore constitutional. If they could not do so – if their actions were illegal or based on a misreading of the law – they would be held liable. There were a few exceptions, notably that judges and legislators had absolute immunity for their work, and officers who made arrests on probable cause could not be held liable if the person was later proven innocent.

But otherwise the Supreme Court (and state courts) consistently held that if an officer broke the law, they, like anyone else, would be held liable.

For example, in 1799, the commander of a US warship captured a ship suspected of violating a law prohibiting vessels from going to French ports. But this ship was coming from a French port. President John Adams didn’t see this as a problem; he read the law as permitting seizures of ships going to or from French ports. The Supreme Court thought this was a sensible reading, but a wrong one. Chief Justice John Marshall – one of the Founding Fathers and an enormously important figure in American law – sympathized with the commander, who was following orders in good faith, but explained that an incorrect view of the law could not legalize the commander’s actions, nor get him out of paying for the harm he caused (in that case, damages for unlawful detention).

This was the original system of constitutional remedies, as envisioned by the framers, and the result was exactly as intended: government, knowing it would be held accountable for any transgressions, was cautious and protective when it came to people’s rights.

After the Civil War, Congress passed a civil rights law called section 1983, which did two things: it provided a cause of action against anyone who violated your constitutional rights under color of law; and it let individuals sue in federal court. This was important in part because it bypassed state courts in the Jim Crow era.

In recent decades, however, the Supreme Court expanded the idea of immunity beyond judges and lawmakers into a robust and general defense for officers, holding in cases like Harlow v. Fitzgerald in 1982 that officers could not be held liable unless their conduct is objectively unreasonable in light of clearly established law.

There are three problems with this rule. First, it has no basis in the text of section 1983, which doesn’t mention any defense of immunity. Second, there is scant support in history or common law for so robust an immunity.

Third, the immunity has created its own problems. For one, such a robust doctrine of immunity sits uncomfortably with the idea of equality under law. The question for police officers is not whether they acted unlawfully, as it is for the rest of us – even if their actions are unlawful, they cannot be held liable unless there is court precedent “clearly establishing” that such actions are unlawful.

Moreover, this level of immunity has naturally reduced accountability and encouraged misconduct by not discouraging it. It has been nearly impossible to hold officers accountable because they are held to a lower standard than most individuals or entities in our society.

In 2015, for example, the court held that an officer who, without any training on the matter, fired his rifle six times in the dark at a vehicle traveling 85mph towards spike strips couldn’t be sued because it was not “clearly established” that his actions violated the Constitution’s prohibition on unreasonable force.

In another recent case, following the Supreme Court’s guidance, the Tenth Circuit held that officers who tased and killed an unarmed hospital patient with severe health and mental issues did not violate clearly established law because no prior cases had presented similar enough facts.

In such cases, there is no liability whatsoever. As a result, police departments lack the incentive to reform that is usually provided by litigation liability – the same incentive that ensures shopkeepers keep their floors dry or that companies like Uber vet their drivers. They can retain officers like Chauvin, who had records of prior complaints, with limited financial consequences. Had Chauvin been successfully sued for past offenses, it is possible he would never have had his job the day he killed Floyd.

No doubt the court’s jurisprudence – now following decades of precedent – reflects a good faith attempt to balance accountability with the burdens of litigation for police officers who are routinely put in difficult situations. Police officers are often underpaid and not given enough resources or training. But these matters are better addressed through legislation than qualified immunity.

For all of these reasons, qualified immunity has come under widespread and bipartisan criticism, from conservative legal scholars and libertarian think tanks like Cato to organizations like the NAACP and the ACLU.

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    Just three years ago, Justice Clarence Thomas noted the law was divorced from the statute and invited a challenge: “Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.”

    The court can’t fix all of the country’s problems, and it certainly can’t solve racism, but it can remove the judge-made impediment to accountability that has fueled the problems being protested. Now’s a good time.