The U.S. Supreme Court is still weighing whether to take one of several cases in which one party is asking the Court to reconsider the doctrine of qualified immunity. As noted in a recent HCBullet update, qualified immunity is a doctrine that holds that government employees are immune from civil liability for constitutional violations unless they violate “clearly established” law. The wisdom and practical impact of the doctrine have been significantly debated in recent years.

But while the Court deliberates, legislators have introduced legislation to abolish the doctrine in response to the public outcry following the death of George Floyd at the hands of a Minneapolis police officer. An initial bill, limited to abolishing qualified immunity, was proposed by Representative Justin Amash (L-MI), a longtime critic of the doctrine, with several democratic co-sponsors. More recently, dozens of U.S. House and Senate members proposed a broad set of legal changes aimed at reforming police practices, one of which was eliminating qualified immunity. Many commentators and politicians blame qualified immunity for encouraging the kind of abusive police practices that led to Mr. Floyd’s death. They claim that the immunity “sharply limits” the civil liability of police officers to situations where officers were found liable “in an identical case.”

As a threshold matter, these voices misstate the law of qualified immunity. It is incorrect to say that the doctrine bars liability unless officers were found liable in “an identical case.” The U.S. Supreme Court has repeatedly held otherwise: a plaintiff can overcome the qualified immunity defense by pointing to liability in “similar circumstances,” or in the unusual “obvious case” where precedent is not necessary. Thus, it is highly probable that Mr. Floyd’s estate would easily overcome any qualified immunity barrier were they to file a civil suit over his death. The same could be said for other recent, high-profile examples of police abuses.

Proponents of the bill to abolish the doctrine cite cases where qualified immunity was granted to an officer who shot a 10-year-old when he discharged his firearm at the family’s pet, officers who stole over $200,000 in cash and rare coins during the execution of a search warrant, or a SWAT team which bombarded an empty house with tear gas (after the owner gave them consent to enter the home). However, little attention is paid to the significant sums municipalities spend defending baseless suits or the settlement pressure created by the ability of plaintiffs, but not defendants, to obtain attorney’s fees.

At this point, it is too early to predict the fate of qualified immunity, be in Congress or the Supreme Court. Before Mr. Floyd’s homicide, it was hard to imagine the GOP-controlled Senate giving any consideration to abolishing qualified immunity. But Floyd’s death was so outrageous, and the public outcry so strong, that a wide-ranging bill reforming police practices seems all but certain. As attorneys focused on defending state and local governments, we at Hervas, Condon, & Bersani will be watching these developments closely in order to provide the best advice possible to our clients. Like all responsible citizens, we recognize the necessity of certain reforms, but we hope to see such reforms passed in a way that does not increase the exposure of municipalities and their insurers to flimsy lawsuits, especially in these economically challenging times.