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EDITORIAL: A get-out-of-jail-free card

The Supreme Court has shut down due to the coronavirus. But when the justices reconvene, they should take on one of many challenges pending to a long-standing doctrine that too often allows government officials to ignore the Constitution. The concept is known as “qualified immunity,” and it protects police officers and other government workers from liability when they take discretionary actions as part of their official capacity.

As Jay Schweikert of the Cato Institute points out, the doctrine derives from a 1967 U.S. Supreme Court decision. In 1982, the high court limited such immunity to cases in which conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

But the bar is high for such claims, and lower courts have consistently struggled to equitably apply qualified immunity. Some justices in recent years have suggested that the Supreme Court reconsider the matter, given that the doctrine has perpetuated a number of high-profile injustices.

Consider the fatal shooting in 2015 of Gilbert Flores.

The incident came to a head, reason.com notes, when deputies Greg Vasquez and Robert Sanchez of the Bexar County Sheriff’s Department in Texas answered a domestic violence call. When they arrived at the scene, Flores had a knife in his hands and was behaving erratically. About 12 minutes later, while Flores stood 30 feet away from the officers with his hands in the air in a surrender pose, the deputies opened fire and killed him.

Mr. Vasquez and Mr. Sanchez argued their use of deadly force was justified because Flores posed an immediate threat. Flores’ widow disagreed and filed suit, claiming the deputies had violated her husband’s Fourth Amendment right to be free from the use of excessive force.

Not surprisingly, the officers urged the courts to throw out the case because their actions were protected by qualified immunity. A federal appeals court rejected their claim, however, as did the 5th U.S. Court of Appeals.

In its ruling that the family’s suit could proceed to trial, the appeals court stated that “a reasonable officer would have understood that using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment.”

While law-abiding police officers face unfair accusations all the time, that shouldn’t serve as an excuse to prop up a bad concept that the Cato’s Clark Neily aptly describes as “a get-out-of-responsibility-free card for rights-violating cops who shoot first and ask questions never.”

With Amador v. Vasquez and other recent cases challenging the validity of qualified immunity, it is time for the Supreme Court to address this issue and to narrow this extensive protection afforded public officials. The intent shouldn’t be to hamstring public officials, particularly the police, who often have to make tough decisions quickly. But In far too many cases, the doctrine protects those who have acted egregiously. Let a jury decide such cases.

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