 On July 10, 2014, police officers in Coffey County, Georgia, entered a private yard where six children were playing. The officers, who were in pursuit of a criminal suspect, ordered the kids to get face down on the ground. When the family dog came out into the yard, one of the officers fired at the dog twice, but missed. One of those bullets struck a 10-year-old in the back of his knee. When the child's mother attempted to sue the officer for damages, the case was dismissed due to qualified immunity, a legal doctrine that effectively shields police from most civilian lawsuits. Following the police killing of George Floyd and growing calls for police accountability, this once-obscured doctrine has been thrust into the national spotlight. Qualified immunity. Qualified immunity. Qualified immunity. More people are starting to look around and take notice of what's gone wrong with policing today and are asking, you know, gee, is the fact that the police officers are officially above the law, maybe that's part of the problem. William Bode is a professor at the University of Chicago and the author of a widely cited paper arguing that qualified immunity should be overturned. Qualified immunity is a judge-made doctrine that says that when you sue a government official for violating the Constitution, you can't get anything, you can't get any recovery or any damages, even if they did something unconstitutional, unless they also did something that was clearly unconstitutional. Or if the court has put the test, you can only recover damages against an officer who was plainly incompetent or who knowingly violated the law. Incompetence or that an officer acted illegally on purpose is difficult to prove in court. And there are many examples of individuals clearly harmed by police error, but unable to collect damages because specific issues of a case hadn't yet been clearly established as unconstitutional in a previous case. One case was thrown out because of the difference between unleashing a police dog to bite a motionless suspect in a bushy ravine and unleashing a police dog to bite a compliant suspect in a canal in the woods. If you or I or any normal person is accused of violating the law and we say, oh, I didn't realize it was illegal, or, you know, I knew this was a gray area, but I thought I could kind of skate by. That's not an excuse. You know, there's an old adage, ignorance of the law is no excuse. And the one group of people from it is an excuse are the government officials who enforce the law, who think should be held more accountable, who, if anything, are actually trained in the law and should know what they aren't supposed to do. This sweeping protection was never voted on or signed into law, but was instead created over decades of judicial actions to give government officials room to make judgment calls without fear of lawsuits. In 1871, Congress passes the Civil Rights Statute that we still have today, the Ku Klux Klan Act. That statute doesn't say anything about immunity. It says that when a government official, a state official violates your constitutional rights, you can sue them for damages. 100 years later in 1967, Chief Justice Earl Warren decides the statute doesn't quite mean what it says, and that there was a kind of unwritten defense that sort of preempts the statute and provides these kinds of defenses. And in 1982, in a case called the Harlow v. Fitzgerald, they announced the Modern Qualified Immunity Test, which says you can only sue a police officer if they violate clearly established law. Then in the sort of 40 years since then, there's been a drip of maybe 30 or 40 cases where the court makes the test a little bit harder every time and makes it really hard to find anything to be clearly established law. So because this is a judgment doctrine, the court can fix it at any time. They can step in and say, oh, actually we made a mistake and the doctrine shouldn't be here or we've gone a little bit too far and we need to make more clear that it isn't supposed to be impossible to recover. But Congress can also fix it. So because it's just an interpretation of a statute that Congress wrote, Congress also has the power to step in at any time and try to either change the doctrine or repeal it entirely. Weeks after the killing of George Floyd revitalized the criminal justice reform movement, the Supreme Court dealt a blow to reformers by declining to hear a set of cases questioning the constitutionality of qualified immunity. Meaning that currently the only hope for quick reform is legislation like the bill co-sponsored by libertarian Congressman Justin Amash. I've been concerned about civil asset forfeiture. I've been concerned about our drug laws and qualified immunity is just another example of a justice system that is not working for people. The current qualified immunity bill proposed by Representative Amash would basically eliminate the doctrine entirely. And it's a little bit awkward to think about how do you pass a bill to get rid of a judge made doctrine? Because the doctrine's already not in the bill. So what do you do? Pass an empty page that just doesn't contain the doctrine that already wasn't there, that doesn't work. So the bill just adds a paragraph to the civil rights statute saying it shall not be a defense that the police officer was acting in good faith. It shall not be a defense that the police officer did not know his conduct was lawful. It shall not be a defense that the conduct though unconstitutional was not clearly unconstitutional. It just sort of names what the doctrine of qualified immunity is and says, no. Most congressional support is coming from Democrats. I don't think there's any reason for it to be a partisan issue. I think if there's anything we still all agree on it's things like the rule of law and government officials should obey the constitution. So I'm sort of hopeful that people will come around to that basic idea. The White House recently called broad qualified immunity reform a non-starter. A stance attorney general William Barr has defended. I don't think you need to reduce immunity to go after the bad cops because that would result certainly in police pulling back. You know, policing is the toughest job in the country. What we ought to do about the fact that government officials have to make hard decisions is think carefully about what legal rules, what constitutional rules we want to restrain them and then try to figure out how to train them and make them obey those rules. Rather than make a bunch of rules and then decide we don't care when the rules are violated. I don't think reforming or even abolishing qualified immunity is gonna change all the problems we have with policing in this country. You know, there's a lot of research that police unions are another huge part of the problem because they make it really hard to hold bad apples accountable even if we all know who the bad apples are. And then of course there's a serious argument that it's not just about bad apples that there's a much bigger structural problem with the way we license the use of violence against our own citizens. So qualified immunity is not gonna fix all of that. It will make it easier to correct individual constitutional abuses to make sure courts are actually part of the conversation rather than just sort of ignoring the whole thing. And I do hope, I could be wrong with this, but I do hope that by creating the sense that the police are not above the law that it could sort of lead to some of the bigger cultural changes we probably need.