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‘Qualified immunity’: what it is, how it shields police officers from civil lawsuits

In a 2018 dissent, Justice Sonia Sotomayor warned that qualified immunity had become an "absolute shield" for law enforcement.

With police misconduct in the spotlight, many are calling for a review of "qualified immunity." The 50-year-old doctrine shields cops from civil lawsuits even in cases where a citizen's rights have been violated, an attorney says.

The conversation started after the death of George Floyd. The US Supreme Court is scheduled to review it. 

Jay Schweikert, a criminal justice policy analyst at the Cato Institute told ABC News the doctrine created by the court in the late 1960s.

"This is the cornerstone of our culture of near-zero accountability for law enforcement," Schweikert says. 

"In order for a plaintiff to defeat qualified immunity, they have to find a prior case that has held unconstitutional an incident with virtually identical facts to the one the plaintiff is bringing," said UCLA law professor Joanna Schwartz. "And over the last 15 years, the court has made it a more and more difficult standard for plaintiffs to overcome to go to trial." 

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The issue has been percolating in lower courts for years and drawn increasing scrutiny from across the political spectrum. It returns to the Supreme Court now by coincidence, as the country grapples with fallout from the death of George Floyd while he was in Minneapolis police custody on Memorial Day.

Police officers accused of misconduct can face criminal charges, but convictions are exceedingly rare. That leaves civil lawsuits as one of the few avenues for alleged victims to pursue their claims. 

In a 2018 dissent, Justice Sonia Sotomayor warned that qualified immunity had become an "absolute shield" for law enforcement, "gutting the deterrent effect of the Fourth Amendment."

"It tells officers that they can shoot first and think later," she wrote, in a statement joined by Justice Ruth Bader Ginsburg.

Justice Clarence Thomas has also been publicly skeptical of the policy, writing in 2017 that qualified immunity does not have a solid foundation in the Constitution or common law.

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"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," Thomas said. "In an appropriate case, we should reconsider our qualified immunity jurisprudence."

Legal immunity for officers was originally devised out of concern about legal harassment and potential for personal bankruptcies. Some experts have also warned about the erosion of a deterrent effect from police if they became hesitant about enforcing certain laws because of potential legal liability.

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