The George Floyd Act: Is Qualified Immunity really going away?

Three guilty verdicts against Derek Chauvin for the murder of George Floyd are rarer than being struck by lightning twice. But, the state of Minnesota's zealous prosecution was the reason for the miraculous outcome, and it stands in stark contrast to more than a century of failures to prosecute police officers for crimes against Black people. This is due, in large part, to jurors' reluctance to second-guess a dangerous profession in which split-second decisions must often be made. But it is also a result of a legal framework that wraps law enforcement in a cloak of protection.

As the dust settles from post-verdict celebrations, civil rights advocates are now calling for Congressional passage of the George Floyd Justice in Policing Act of 2021, H.R. 1280. The bill, sponsored by California Representative Karen Bass, former Chair of the Congressional Black Caucus, would make other Chauvin verdicts more attainable.

The act would change the level of intent required to prosecute police for misconduct from "willfully" to "knowingly or with reckless disregard," thus lowering the bar for criminal conviction. More importantly, it would enhance accountability for police officers who commit misconduct by significantly narrowing the application of the "qualified immunity" doctrine for local and state officers.

The act would amend Section 1983 of the Civil Rights Act of 1871 (42 U.S.C. 1983) to include the following language:

"It shall not be a defense or immunity in any action brought under this section against a local law enforcement officer (as such term is defined in section 2 of the George Floyd Justice in Policing Act of 2021), or in any action under any source of law against a Federal investigative or law enforcement officer (as such term is defined in section 2680(h) of title 28, United States Code), that--

"(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or

"(2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the defendant, or that at such time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.".

While the Civil Rights Act of 1871, (Section 1983 of the U.S. Code), guarantees citizens the right to sue public officials who violate their legal rights, the Supreme Court has largely gutted that promise by creating the qualified immunity doctrine. Not only that, but in the past few years, it has vastly expanded it.

In Harlow v. Fitzgerald (137 S. Ct. 1843 (2017) the Court replaced "subjective good faith" with a test framed in "objective terms." The protection afforded to public officials would no longer turn on whether the official acted in "good faith," but instead on whether the victim could point to a previously decided case involving the same "specific context" and "particular conduct." Thus, even officials who maliciously violate peoples' rights are immune, unless their victims can show that their rights were "clearly established."

The result has been that ordinary people can be sued for others' injuries if they violate their rights, but public officials can get off without so much as a hand slap. Qualified immunity has morphed into almost complete immunity.

The George Floyd Act holds the promise of scaling back official immunity so that officers such as Derek Chauvin are less likely to act with impunity. They will be more likely to second-guess their actions, especially when they know that asphyxia can result from placing someone in a prone position.

But the act may not go far enough to undo current injustices, especially in communities of color, or to prevent further incursions into the rights of victims. Unless the law completely does away with qualified immunity or severely limits its application, it may be no more than a Band-aid.

For example, on March 8, the Supreme Court refused to hear a case involving a Black Cleveland man who was roughed up and detained by White police officers when he was trying to enter his own home. The 6th U.S. Circuit Court of Appeals in 2020 had granted the officers qualified immunity, ruling that no "clearly established" precedent showed that their actions were unlawful.

But, there have also been signs the Supreme Court could soften its position on qualified immunity. In a solo opinion in Ziglar v. Abbasi (137 S. Ct. 1843 (2017), Justice Clarence Thomas, a strict Constitutional constructionist, recommended that, "[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence." If the court were to find an appropriate case to reconsider qualified immunity, and were it to seriously review available evidence about historical precedents and current operation, there is a good chance that the doctrine would not survive in its current form.

The Chauvin case could be an outlier, or it could signal a true turning point in the nation's move toward justice, and the fulfillment of the Civil Rights Act. And, the George Floyd Justice in Policing Act can be the turning point. 