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Why is Qualified Immunity so Controversial?


Whenever there are incidents of police brutality in the news, or situations where police use excessive force, you often hear a lot about something called qualified immunity. The immunity is so controversial that it even gets mentioned in presidential and political debates. But what is it, and why is it so important—especially in police brutality cases?

What is Qualified Immunity?

Qualified immunity makes police officers (and their employers, such as police departments or cities)completely immune from liability for the things they do in the field, if there is no previously established law or case that says that what they are doing is illegal.

The logic is that police shouldn’t have to worry about whether they are going to get sued, or get into criminal trouble, when they are making decisions in public; police often have to make snap decisions, in stressful situations, and they shouldn’t be second guessed after the fact in court—unless their behavior has already clearly been established to be illegal beforehand.

So What’s the Problem?

This is the problem with qualified immunity. So long as a police officer or department can demonstrate that the situation the officer encountered in a given encounter was “new,” or else, that the same situation hasn’t yet been addressed by the courts as being illegal, the officer can get away with any type of careless or negligent behavior.

But in reality, no two situations are 100%, exactly the same. No two situations in the street, faced by police, have the exact same facts and circumstances. That means that police departments generally have an easy time saying that the officer has immunity for something he or she did.

Imagine an officer that is running after a man he thinks may have robbed a bank. He shoots the man in the back, but the man turns out to be innocent. The officer is sued by the victim, but the officer claims immunity.

Are there other cases just like that one, where courts have said what the officer did was illegal? Probably not. In one previous, similar case, the robber may have had a weapon. In another case, the robber may have robbed a grocery store. In another case, the robber wasn’t running from the officer, he was walking.

By taking these minute and often inconsequential details, and differentiating one case or situation from another, the police officer can claim that what he or she encountered in the field was a “new situation,” and that there was no established law on point telling the officer in advance, that his or her behavior was excessive and thus illegal.

Broad Applications

Qualified immunity is most often used in police brutality cases—but it applies to all government agents, including teachers, or correction officers. The doctrine makes it very easy for government actors to evade liability, just by saying that the behavior wasn’t previously found to be illegal or excessive.

Are you a victim of excessive force or police brutality? Contact the Tampa personal injury lawyers at Barbas, Nunez, Sanders, Butler & Hovsepian and schedule a consultation today.


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