Qualified immunity has become a big concern as conversations grow surrounding police reform. And as Reuters reports, use of the controversial court doctrine has only grown as well.
The Supreme Court created qualified immunity in 1967 to protect police officers who acted in "good faith" but violated the Constitution while working in an official capacity. It lets courts stop victims of police brutality from suing officers, even over an unconstitutional act, unless their actions were "clearly established" to be unconstitutional beforehand.
To decide whether to grant a police officer's request for immunity, courts first ask whether a jury could find an officer violated the Fourth amendment and used excessive force. Courts said yes to that question in more than half of appellate cases from 2015-2019 that Reuters analyzed. But as of 2009, courts can also skip the first question altogether, and have been doing so more and more often.
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Next up, courts ask whether an officer should've known the violation was unconstitutional because it was established by a previous case. If that's a yes, the case goes to trial. But if not, the office receives immunity and the case doesn't even go to a jury. That's what has happened in more than half of cases from 2015-2019, Reuters reports.
Reuters goes on to note that granting immunity is actually a growing trend. From 2005-2007, courts actually favored plaintiffs 56 percent of the time in excessive force cases. But from 2017-2019, that trend has reversed, and courts favor police 57 percent of the time. This growing reality has lawyers, civil rights advocates, politicians, and even Supreme Court justices worried the doctrine has "become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights," Reuters writes. Read more at Reuters.
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