Here’s perhaps the most astounding fact: The officer fired when the boy was only 18 inches away. What an astonishingly reckless and unreasonable use of a firearm. So the boy’s family sued. They lost. The reason? An unjust doctrine called “qualified immunity.”
Here’s the essential legal background. Since 1871, federal law has allowed citizens to sue public officials for violations of their constitutional rights. The relevant statutory language is clear and unambiguous (emphasis added):
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Since 1982, however — and thanks to the Supreme Court — the phrase “shall be liable” has been reinterpreted to essentially mean, “may occasionally, in extreme circumstances, be liable.” The court held that public officials could be immune from suit for damages when their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Again, this language is not in the statute. Moreover, the definition of a “clearly established” right is extraordinarily restrictive. In its practical application, a plaintiff cannot be sure to prevail unless he or she can cite a remarkably similar case, with nearly identical facts, decided by a court of controlling jurisdiction