Some reps in Congress assert that dismantling qualified immunity (“QI”)— a police officer’s so-called good faith defense to a civil rights lawsuit—is a “non-starter” in negotiations to pass the George Floyd Civil Rights Act. In reality, meaningful police accountability is a non- starter without discarding QI. QI is a regressive framework which has turned federal civil rights lawsuits into sheer games of chance with bad odds. Under QI, the Supreme Court instructs judges to apply a two-pronged analysis, in a specific order: first to examine whether the right sought to be vindicated was clearly-established at the time, and second to examine whether the officer reasonably could have believed his/her conduct was lawful. But if the judge finds that the right was not clearly-established, the case is over; the judge dismisses it without ever examining whether the officer acted unreasonably. As a result, dismissed cases do not add to the body of clearly-established rights so as to protect even future victims of police abuse. Rather, police can repeat the same rights violations ad infinitum without civil rights law ever advancing.
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