 On December 9th, 2011, three police officers in a K-9 unit responded to a call at a Louisiana apartment complex. There, they came upon 21-year-old Kwamein Mason. Mason was carrying a weapon. Within minutes, one of the officers would shoot Mason five times. While Mason was on the ground, the officer fired two more rounds. D, as his friends call him, died at the scene. Mason's family sued the officer in the civil court. In the ensuing trial, the jury rendered a head-scratching verdict. The officer used excessive force against Mason, but was not liable for his death. The reason? Qualified immunity. An obscure 1960s-era doctrine created by the Supreme Court that shields public officials like police officers from liability when they harm civilians on the job. Kwamein was a very intelligent young guy. He kind of had an old soul, if you want to call it that. I think it's a tragedy. I mean, there should be no way in the world that a jury can find guilty of something and there'd be no repercussions. As the killings of George Floyd, Breonna Taylor, and Richard Brooks have reignited the national debate over police accountability, advocates say it's finally time to end qualified immunity. Qualified immunity is a judge-made doctrine that says that when government officials violate your constitutional rights, you still can't sue them unless they did something that was so egregious that only somebody who was intentionally out to get you would have done it. William Bogue teaches law at the University of Chicago. He wrote an influential paper questioning the legal underpinnings of qualified immunity. The doctrine of qualified immunity is a crucial part of the conversation about police reform. It's fundamentally a marker that police are above the law and don't have to obey the same rules everybody else do. The story of qualified immunity goes back to the years following the Civil War. In 1871, as the Ku Klux Klan terrorized formerly enslaved people across the South, Congress passed a series of laws aimed at crippling the group in a nod to the reality that government officials often ignored and sometimes even participated in these racist crimes. The laws included a statute that allowed citizens to sue public officials who violated their civil rights. For the next 100 years, this statute, Section 1983, became the principal tool people used to pursue justice against wayward police until 1967. That's when the Supreme Court introduced a new element into civil suits against public officials, the good faith defense. Bloomberg Law's Supreme Court reporter, Kimberly Robinson, explains. In the 1960s, the Supreme Court had a case involving some white and black clergy members who had tried to promote racial integration at a bus terminal. They were arrested under a law that was later found to be unconstitutional. The clergy members sued under Section 1983, claiming false arrests and imprisonment. But the justices kind of read background legal principles to say that there has to be some kind of an exception when the officer had good faith police that they were not active in the way that was unlawful. In other words, as long as an officer can argue that he believed his conduct was justified within the context of his job, even if a court rules otherwise, he cannot be held liable. Over time, the good faith defense evolved into a catch-22 for citizens trying to sue police. Today, often before courts will even consider if an official's conduct is illegal, plaintiffs must first cite a previous court decision that ruled against an officer in virtually identical circumstances. Otherwise, the case is thrown out. Meeting this requirement has at times led to some perverse outcomes. The Supreme Court recently was considering taking up a case where an individual was bit by a police dog while they were sitting on the ground with their hands up. And the plaintiffs had offered up a previous case that found that an individual who was bit by a dog who was lying on the ground with his hands down had been subject to constitutional violation. But the law report said that wasn't close enough. There was enough of a distinction between the person sitting down with their hands up and the person laying down that the officer was entitled to qualify in the day. So a consequence of this sort of two-step process is that a lot of the time the court can say yes, what you did is unconstitutional, but because nobody'd ever done it before or because nobody'd ever said it before, we're still gonna hold the officer immune because until we ruled, you know, maybe the officer wouldn't have known. One analysis found that between 2015 and 2019, courts granted police immunity more than half the time. Supporters of the doctrine say that policing is hard and officers shouldn't have the threat of lawsuits hanging over them while doing their job. But police reform advocates are starting to push back. I think it's true that police officers have a really hard job. I just don't think we're doing them any favors by telling them therefore you just shouldn't worry about what the law requires of you. Opposition to qualified immunity has found some strange bedfellows. Lawmakers from both parties and even the House's lone libertarian have voiced support for abolishing it. But President Trump and Senate Republicans have called it a non-starter. Even the Supreme Court has split two of its members from opposite ends of the ideological spectrum oppose qualified immunity. But the full court has declined numerous opportunities to revisit the doctrine. Just because the justices didn't act on it now, it doesn't mean that they won't return to the question in the future and maybe it wasn't in their future. Qualified immunity appears to be safe for now, but in a moment of renewed focus on police accountability advocates hope its judgment day is coming soon. The doctrine of qualified immunity really offends sort of fundamental principles of justice and basic principles of common sense and do you think about it? Why should people who are sort of trained and given this you know immense responsibility and immense power be held to a lower standard than all the rest of us? We love him we miss him and I hope that something good comes of this qualified immunity thing. At least we can help somebody else if we couldn't help if we couldn't help him.