In 2016, an unarmed 26-year-old Texas resident named Daniel Shaver laid face down in a hotel hallway with his hands by his head and begged for his life, but Philip Brailsford pulled the trigger. Repeatedly.
But Brailsford was acquitted of murdering Shaver. Why? Brailsford was a police officer, and is therefore entitled to qualified immunity.
Today, there is a growing movement to abolish qualified immunity for government officials. While most of the public calls come from far-left groups, most of the groundwork is coming from conservative and Libertarian groups who note that qualified immunity is a judicial misread of 42 U.S. Code §1983, a law that makes it a crime to deny a person his or her civil rights.
Ending qualified immunity would help reduce government abuse of power in all levels of government, not just the already-rare instances of police killing unarmed African-American men.
If qualified immunity ended:
- Department of Justice officials could be prosecuted for violating the rights of Nevada rancher Cliven Bundy.
- Civil rights enforcers could be sued personally for violating the rights of Christians.
- FBI officials would be careful not to cut corners when investigating President Trump, as Trump would gleefully sue each and every abusive agent.
Justices Clarence Thomas and Anthony Kennedy are now on record giving originalist arguments against qualified immunity. These arguments, combined with progressive anti-police arguments, may lead courts to roll back or end qualified immunity for government officials.
These officials are far more likely to comply with the law knowing that they can be sued or imprisoned for severe violations of the law. This would be a win for all of us.