Ending qualified immunity: Five things to know about the legal obstacle protecting police officers who violate rights of citizens

The killing of George Floyd has drawn comparisons to the death of Eric Garner. In both instances, a black man was arrested and forced to the ground by a white officer. In Garner's case, the New York City officer used a chokehold. In Floyd's case, the Minneapolis officer knelt on his neck. Both men were filmed telling the arresting officer that they couldn't breathe just prior to their death. Both incidents sparked protests and a national conversation about the use of force by law enforcement but have diverged in one significant aspect: The officer who put Garner in a chokehold was never indicted on criminal nor civil charges (the debate over whether to bring federal civil right charges ended last year), while the officer who pinned Floyd was charged with third-degree murder and manslaughter. But if Floyd's family were to pursue civil recourse, they will likely wade into the same issue experienced by Garner's relatives. Garner's family received $59 million from a civil settlement with the New York City Police Department, but they were unable to pursue a federal civil rights lawsuit against Daniel Pantaleo, the officer who performed the chokehold and denied using excessive force, because he was protected by qualified immunity (Pantaleo, who was fired in August, sued to get his job back in the fall). This sparked a wave of calls for reforming qualified immunity. During his brief run for president, Julian Castro listed Garner's case as justification for his proposal to end qualified immunity as the cornerstone of proposed policing reforms. Now, Floyd's death has inspired many more calls for change, including legislation that has drawn bipartisan attention in the House and the Senate.

What is qualified immunity? Qualified immunity is a legal protection for government officials that prevents them from being individually held liable in federal civil rights lawsuits for illegal and unconstitutional acts. The immunity not only protects individual officers from facing damages for violating the rights of a citizen, but it blocks federal civil rights cases from going to trial, thus shielding them from the financial burden that comes with a lawsuit. A civil rights lawsuit can only be brought against a government official if it can be proven a "clearly established" right has been violated, but that's a high bar to cross.

What is a "clearly established" right? Clearly established rights are centered on precedent, taking cues from court decisions of the past by a federal court in the same jurisdiction or the Supreme Court on similar situations. It does not matter whether the offending official maliciously violated a citizen's rights. This legal threshold is difficult to meet. In February of this year, the 5th Circuit Court of Appeals ruled that an inmate in a Texas prison could not seek federal legal recourse against a prison guard who pepper-sprayed him in the eyes "for no reason" because the legal precedent only included cases where a prisoner was tased or hit without reason. There was no precedent for mace, so the prison guard was granted qualified immunity.

What has the Supreme Court said? Qualified immunity has been around in some form since a court ruling in 1967 and was greatly expanded in the 1982 Supreme Court ruling in Harlow v. Fitzgerald. In that ruling, the court said qualified immunity was needed to allow law enforcement officials to do their job without fear of persistent legal recourse, no matter their intent. The 1982 ruling did away with the legal threshold that mandated an officer act in "good faith." The officer must only prove to the court that he or she holds a government job that requires immunity, such as being a member of a police department, and that he or she was working in that capacity when the incident took place. The Supreme Court has made several rulings over the years reaffirming qualified immunity. "Qualified immunity balances 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 reasonably,” the court wrote in Pearson v. Callahan, a subsequent qualified immunity ruling from 2008. The court announced in May that it had declined to hear three additional cases seeking to scale qualified immunity in its current session.