What about the Courts? It seems the whole judicial branch of government has been ignored in the discussions about police reform. There is some movement around qualified immunity – a legal doctrine that protects police who violate rights – but those changes might not yield significant results. Qualified immunity reform would only fix problems with access to the civil courts, not result in criminal charges. By their nature, these suits are backward-looking and consequently make poor purchase for hopes of swift change.

Perfect Timing at the Supreme Court

To the extent that the courts have been mentioned at all in the wake of George Floyd’s outrageous killing, the talk has surrounded qualified immunity. By an accident of timing, it just so happens the Supreme Court this very moment is considering whether to hear a new qualified immunity case. In fact, not just one, as noted in SCOTUSblog: “[t]here’s a group of nine cases that in one way or another all challenge current qualified immunity doctrine, under which law enforcement officials are not liable for discretionary actions that allegedly violated someone’s rights unless the actions violated ‘clearly established’ law.”

The Supreme Court invented qualified immunity in 1967. The Civil Rights Act of 1871 gave people the right to sue police in federal court if their rights were violated. The 1967 case of Pierson v. Ray was supposed to give well-meaning officials the benefit of the doubt. Chief Justice of the United States wrote:

“A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.”

The ruling in Pierson required officials to act in “good faith” to receive the immunity grant, a requirement the Court changed in 1982, in Harlow v. Fitzgerald. In that case, they said even officials who violate peoples’ rights maliciously would be immune unless the victim can show that his or her right was “clearly established.” That clearly established standard is exceedingly difficult to meet – there almost needs to be a case where the essential details are identical, and previously ruled on, to prove the point. The new standard created an often insurmountable barrier to recovery.

Justice Thomas Leads The Way

Justice Clarence Thomas has been a leader on the court who has used his seat to write in opposition to the rule. In a 2017 case where he agreed immunity was warranted, he followed up with an objection to how the court has handled the issue. He said in Ziglar v. Abbasi: “I write separately, however, to note my growing concern with our qualified immunity jurisprudence.” The left block may share Thomas’s opinion on qualified immunity on the court, but they will never agree with him on the reason why it should change because he is grounded in originalism. Justice Thomas first looks to the grant of authority, and the law in question to determine its legality, not it’s social impact. He wrote:” In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute.”

Here is more from Justice Thomas in Ziglar with legal citations omitted:

Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in ‘interpret [ing] the intent of Congress in enacting’ the Act. Our qualified immunity precedents instead represent precisely the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make. We have acknowledged, in fact, that the ‘clearly established’ standard is designed to ‘protec[t] the balance between vindication of constitutional rights and government officials’ effective performance of their duties.’ The Constitution assigns this kind of balancing to Congress, not the Courts.

Qualified Immunity Change Will Not Save Us

While such change would be welcome and return power to the people, it wouldn’t do much to fix the crisis as it would enrich Benjamin Crump. Qualified immunity concerns only who is allowed to sue for damages. The damages need to be inflicted first. That led legal commentator Scott Greenfield to say about QI reform: “What it won’t do is stop cops from beating people, killing people, violating their constitutional rights or ignoring the First Rule of Policing. As the adage goes, ‘better to be tried by 12 than carried by six.’ Get rid of QI and your family can recover for your death, but you’re still dead.”

If the courts don’t act on this, Congress may, as they should have a long time ago, when the Supreme Court decides to engage in lawmaking. Greenfield’s analysis is sound, but for those so damaged, they should see a path to recovery. Perhaps municipal insurance policies and other financial pressures will help spur changes in policing if meaningful qualified immunity change is instituted. Every little bit helps, I suppose. Just don’t get your hopes up that qualified immunity reform will yield substantial changes in how we are policed.

Read more from Scott D. Cosenza.