William Baude on How and Why to Fix Qualified Immunity

Why Bad Cops Aren't Punished: The Case Against Qualified Immunity

Following the police killing of George Floyd, the once-obscure legal doctrine known as qualified immunity has been thrust into the national spotlight.

The judge-made doctrine effectively shields police from most civil lawsuits unless their specific conduct has been "clearly established" as unconstitutional in a previous case.

"You know, there's an old adage, ignorance of the law is no excuse," says William Baude, a professor at the University of Chicago Law School. "The one group of people for whom it is an excuse are the government officials who…should know what they are and aren't supposed to do."

This sweeping protection, which was never voted on or signed into law, evolved over decades of judicial actions to give government officials room to make judgment calls without fear of lawsuits.

"The court can fix it anytime," says Baude. "But Congress can also fix it. Because it's just an interpretation of a statute that Congress wrote, Congress also has the power to step in…to either change the doctrine or repeal it entirely."

Read more at Reason