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The doctrine of qualified immunity

Even though the Derek Chauvin trial has now ended by his being convicted of murdering George Floyd, there continues to be a national discussion as to whether a special legal defense, which is used in civil rights violation lawsuits against public officials should now be abolished.

The defense is called “qualified immunity” and is a judicially created doctrine first announced in the 1967 United States Supreme Court case of Pierson v Roy and expanded in subsequent decisions.

This defense protects public officials (such as police officers) from individual liability unless the official violated a “clearly established” constitutional right or law.

Clearly established means that, at the time of the official’s conduct, the law was sufficiently clear that every reasonable official would understand that what they were doing was unconstitutional. This requires a showing by the plaintiff that existing precedent has placed the statutory or constitutional question beyond debate.

The rationale behind the defense is a balancing of two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties responsibly.

It has been claimed by some that this defense is too hard for plaintiffs to overcome and over the last few years there has been a call from various groups and individuals for it to be abolished. Since Mr. Floyd’s death, at least 25 states (including Michigan) have reviewed the issue with two states (Colorado and New Mexico) abolishing the defense and two states (Connecticut and Massachusetts) modifying it.

On March 3, 2021, the United States House of Representatives passed “The George Floyd Justice in Policing Act of 2021” which, if approved by the Senate, abolishes the defense nationally.

There are also a number of opponents to ending the defense including law enforcement.

Last week southeast Michigan law enforcement leaders met at the Oakland County Sheriff’s Office for a press conference to voice their opposition with the consensus being summed up by Sheriff Michael Bouchard: “Qualified immunity is to protect the deputy, the officer, the individual, in those split-second decisions when they’re inside all the protocols and all the policies, but there may be a tragic outcome.”

There is no easy answer here and no one can tell when or if additional changes will be made.

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