This week, after protests over George Floyd’s death, the Supreme Court may revisit a key doctrine shielding police officers.
by letting victims and their families sue abusive government officials. But the Supreme Court has butchered that law to prevent countless victims of police brutality from seeking justice through one of the only state-sanctioned avenues available to them. At their conference on Thursday, the justices will have an opportunity to begin unraveling the catastrophic case law that allows so many officers—including, apparently, Floyd’s killers—to murder civilians with impunity.
Although the Constitution bars government officials from engaging in race discrimination, conducting unreasonable searches and seizures, or taking someone’s life without due process, those guarantees do not enforce themselves. Congress recognized this problem during Reconstruction, when Southern state officials refused to protect newly freed black citizens, instead colluding with white civilians to terrorize them.
Under the Supreme Court’s current interpretation of Section 1983, however, it is not enough for victims to prove a violation of some constitutional right. They must also demonstrate that this right is “clearly established,” meaning a court has previously found that a very similar offense violated the Constitution. If a victim cannot meet this burden, the state official receives “qualified immunity,” and the lawsuit fails.
The addition of a “clearly established” requirement has transformed Section 1983 into a rubber stamp for egregious police misconduct. It is almost always possible for a judge to insist that a right is not “clearly established” because there is no precedent with the exact same facts. Two cases from 2017 illustrate the absurdity of this rule. In one, a court granted qualified immunity
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