Like a flare over a battlefield, the horrific killing of George Floyd is illuminating the fissures, cracks and outright bottomless chasms in our justice system. One pressing question: should qualified immunity as a defense to a constitutional violation be eliminated or reformed? The Justice in Policing Act of 2020, introduced in the House of Representatives on June 8, contemplates eliminating the defense. Three Justices on the U.S. Supreme Court have recently dissented from the Court’s denial of cert petitions seeking to review the defense’s continued viability. And on June 12, Judge James A. Wynn Jr. of the U.S. Court of Appeals for the Fourth Circuit took the extraordinary step of publishing an op-ed in The Washington Post, “As a judge, I have to follow the Supreme Court. (But) It should fix this mistake (of qualified immunity.)” He argues that the defense leads to a double injustice: citizens as victims and police as unaccountable perpetrators of the injustice.

What is qualified immunity? Here is the basic wiring. We have a Bill of Rights listing out our Constitutional rights. In 1871, Congress enacted a civil rights act empowering citizens to sue for a violation of those rights. A key provision is called Section 1983. It is this provision that gives plaintiffs access to federal court to vindicate a violation. All was quiet on the civil rights front, however, until 1986 when the U.S. Supreme Court, in Tennessee v. Garner, struck down a Tennessee statute allowing the police to use deadly force to stop a suspected felon who was fleeing the alleged scene of a felony. (Twenty-one states had these statutes.) The Court held that taking a person’s life was the ultimate unlawful seizure under the Fourth Amendment. (Whatever your beliefs, I invite the reader—as I do my students in my Civil Rights course—to contemplate the date of the decision as juxtaposed with today. To paraphrase Faulkner, the past is not dead and, in fact, it is not even the past.)