On Tuesday, a federal court went against more than a decade of decisions in denying qualified immunity to a cop who shot a black man 22 times.
The unanimous decision by a three-judge panel concerns the case of Wayne Jones, who was shot and killed in West Virginia in 2013 by five cops, who fired at him while he lay motionless on the ground, reports BuzzFeed.
Judge Henry Floyd of the 4th Circuit U.S. Court of Appeals wrote on behalf of the panel, citing the recent police killing of George Floyd.
“Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis,” wrote Floyd, who is not believed to be related to George Floyd. “This has to stop.”
Judge Floyd wrote that granting the five officers qualified immunity, and thus dismissing the lawsuit against them, “would signal absolute immunity for fear-based use of deadly force, which we cannot accept.”
As calls for massive structural changes to policing have gotten louder in the last week—#DefundThePolice being perhaps the most prominent among them—more politicians, activists, and celebrities are talking about qualified immunity, a powerful doctrine that protects law enforcement and city officials from personal liability for constitutional violations. These violations include excessive force and claims of civil rights violations, which government officials can sidestep so long as they did not violate “clearly established” law.
Congresswoman Ayanna Pressley (D-Mass.) introduced the Ending Qualified Immunity Act to the House of Representatives last Thursday, reports Boston.com. Co-written by Rep. Justin Amash, a Michigan rep who once ran as Republican (he now identifies as a Libertarian), the legislation has 16 Democratic co-sponsors, including Reps. Ilhan Omar (D-Minn.) and Alexandria Ocasio-Cortez (D-NY).
“Qualified immunity shields police from accountability, impedes true justice, and undermines the constitutional rights of every person in this country,” Pressley said in a statement.
The bill, which recently received an endorsement from more than 1,400 current and former athletes, coaches and executives from major professional sports leagues, would amend a portion of the Civil Rights Act of 1871 and “effectively cancel the precedents set by the Supreme Court,” writes Boston.com:
Specifically, the legislation would clarify the law to say it is not a sufficient defense for a government official to say they were acting in good faith or reasonably believed their conduct was lawful “at the time,” nor is it a defense that the rights violated were not “clearly established.”
The way the current doctrine is written makes it difficult to successfully sue cops for excessive force if their cases haven’t already been found unconstitutional in a case with “virtually identical facts.” Over the last 15 years, courts across the country have sided with cops in excessive force cases with the help of this doctrine. As Reuters recently reported, the Supreme Court has only bolstered these protections.
The judgment coming out of the 4th Circuit is significant, then, not because it cites the killing of George Floyd, but because it is an anomaly in how lawsuits claiming police abuse typically are decided. While the conversation around qualified immunity is perhaps the loudest it’s ever been, whether this latest decision is a notable exception or the first wave of a shifting tide remains to be seen.