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When Police Misconduct Is Protected by Qualified Immunity: Will The US Supreme Court Take Action?


Qualified immunity afforded to police officers when they injure or kill citizens suspected of committing crimes affects how everyone who is charged with a criminal offense is treated, as well as what rights they are afforded. While originally created to try and protect the government from frivolous lawsuits, it has, today, arguably turned into a shield to protect police who have engaged in excessive force and unreasonable search and seizure violations, in spite of citizens’ Fourth Amendment rights. In fact, in the number of cases, even when the courts have found that the police have used excessive force and caused severe permanent injuries and/or death to defendants, they have still provided immunity to police officers, who have not faced any consequences as a result.

The Standard Used To Decide Whether The Force Used Was Unlawful

Up until 2009, in making these decisions, the courts went through a test set forth by the US Supreme Court which entailed examining the following queries:

  • Whether the evidence indicates that excessive force was used by the officers in violation of the Fourth Amendment. If yes, the court then asked:
  • Whether the officer should have known that they were breaking clearly established law. This is where the main challenge came from for those harmed by police, as the Court had provided a very narrow definition of what constitutes clearly-established precedent, making it essentially Impossible to ever find that police had violated it.

In addition, this became even more difficult in 2009, when the Supreme Court came up with a new test which ignores the question of whether excessive force was used and instead only examines whether prior precedent established that the force used was unlawful; a standard that is even more difficult to meet and thus provides justice even less often to victims of police misconduct.

Why It Has Become Close to Impossible to Obtain Justice for Victims, In Spite of More Documentation of Police Misconduct

As a result, in spite of the increasing use of police body cameras and witnesses recording incidents involving police misconduct on their phones, it is still becoming easier and easier for officers to injure or kill people without consequences. Police are rarely held accountable unless there is very specific precedent (with case facts that are essentially identical to the case in question) establishing that the officer’s treatment of the defendant was unlawful. And unfortunately, federal appeals courts and district courts must follow what the US Supreme Court has dictated, which means that qualified immunity continues to protect police officers‘ actions that have already been deemed to be illegal. As a result, police brutality continues to go unpunished and victims’ constitutional rights continue to be violated.

Will The Current US Supreme Court Do Something About This?

The US Supreme Court is scheduled to discuss the issue of qualified immunity privately sometime in May and whether it should take up a number of cases later this year addressing the issue. Justice Sonia Sotomayor in particular has argued that the Court has turned qualified immunity into an insurmountable police defense, in part by actively intervening in cases in order to constantly favor the police. She pointed out that the Court has specifically allowed police to request immunity before the evidence has been presented and if they are denied it, they can appeal right away; rights which are denied to other litigants. As a result, many credible, concerning police misconduct cases are never brought by attorneys in the first place because they are assumed to fail in court.

If You Are Facing Charges, Contact Our Office To Find Out About Our Superior Legal Defense Services

If you have been arrested and charged with a crime and/or your constitutional rights have been violated, contact experienced NYC criminal attorney Mark I. Cohen today to find out how we can help address this injustice and provide you with the best criminal defense possible.





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