Beth Schwartzapfel AND Tony Plohetski:

When Taylor sued the officers who put him in those cells and ignored his cries for help, federal judges agreed that the conditions were unconstitutional — but they threw out his lawsuit, citing qualified immunity. The issue has come up again and again as the country grapples with what accountability for law enforcement should look like.

For years, courts upheld this legal shield. The Supreme Court granted qualified immunity to police in Oklahoma who arrived at a hospital to help staff restrain an agitated patient, but instead shocked him with a stun gun and pinned him to the ground until he died. In another case where the court allowed qualified immunity, a Georgia deputy sheriff shot a 10-year-old who was laying face down on the ground. The cop had been aiming at the family dog and missed.

Courts have used qualified immunity “to protect law enforcement officers from having to face any consequences for wrongdoing,” Mississippi District Court Judge Carlton W. Reeves wrote in a ruling last summer. Even when police commit egregious abuse and misconduct, the judge said, “qualified immunity has served as a shield for these officers, protecting them from accountability.”

Then, for the first time in decades, the Supreme Court signaled in Taylor’s case that this shield has gone too far: “Any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution,” the justices wrote. Taylor could sue, after all.

“This is a new message,” said Joanna Schwartz, a law professor who studies qualified immunity at UCLA. “This is not a reversal of qualified immunity — it is not a new doctrine,” she said, but it does indicate that courts should start thinking more critically about when officers need protection and when that protection becomes a free pass for abuse. 

Advocates of qualified immunity warn that the fear of being sued will cause officers to be less proactive and more reluctant to intervene in potentially risky situations. “Do you really want the police officer thinking about whether they are going to be sued? Or do you want them focusing on how the facts are emerging, perceived by them?” said Philip Savrin, an attorney who often represents law enforcement officers in civil suits, including in one suit before the Supreme Courtwhere qualified immunity was at issue. “We’ve got to have a cushion.”