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Police Brutality, Qualified Immunity, and The Killing of George Floyd

Police lightOn May 25, 2020, George Floyd, a 46-year-old black man, died in the custody of the Minneapolis police when a white police officer, Derek Chauvin, knelt on his neck for nine minutes while Floyd was handcuffed and lying face down on the street. Officer Chauvin continued kneeling on Floyd’s neck for at least three minutes after he had stopped breathing.

Floyd’s death triggered massive worldwide protests against police brutality and racism, and all four officers were arrested and charged with felonies. The case has triggered discussions in legal circles about reforming the police and limiting the application of the doctrine of qualified immunity, which protects officers from personal liability for actions performed in the line of duty.   

What Is Police Brutality? Section 1983 and the Use of Excessive Force by Police Officers

The term “Section 1983” refers to the Civil Rights Act of 1871, passed in the aftermath of the Civil War, which allows people whose constitutional rights have been violated by government officials to sue those officials in civil court for money damages, including personal injury damages and wrongful death damages. Actions are typically brought under the Fourth Amendment to the US constitution, which prohibits unreasonable search and seizure. 

Section 1983 has been amended and reinterpreted several times in its history, and it has often been used as a legal weapon to fight police brutality against ordinary citizens, particularly citizens of minority ethnic groups.  Section 1983 cannot be used against a private citizen acting in his personal capacity – even if that citizen happens to be a government official – but only against someone acting “under the color of law” such as an on-duty police officer.

Excessive Force 1983 Cases

  1. Stewart Jones Hacker Murphy has represented a number of clients who have been victimized by the police, including:

Exactly How Much Force Is Considered “Excessive”?

The answer to this question is necessarily vague since it must apply to any officer using force under any circumstances. The general standard is that an officer uses excessive force when he used more force than a hypothetical “reasonable officer” would have used under identical circumstances. This definition begs the questions, however, of exactly what a “reasonable” officer would have done under this or that circumstance.

Generally speaking, the legal standard for what a “reasonable” officer would have done under similar circumstances is defined by courts making decisions in cases with highly-specific fact patterns. When a new case arises with different facts, lawyers for opposing sides will argue that “this case is like Case X” or “no, this case is more like Case Y,” in order to convince a judge to apply Section 1983 in a manner that is favorable to their client. 

The inquiry, however, attempts to focus on the objective reasonableness of the amount of force that was used under the circumstances of a given case. A particular amount of force is not necessarily excessive even if the suspect was killed, and it is not necessarily reasonable even if the suspect was not injured. The officer’s state of mind is irrelevant. The question is not whether the officer acted in “good faith,” but how his actions compare with a “reasonable” officer.

The Burden of Proof

The “burden of proof,” also known as the “burden of persuasion,” refers to the weight of evidence that must be gathered against a defendant to prove whatever charge or claim is being asserted against that defendant – a wrongful death, for example (a civil offense) or a murder (a criminal offense). 

The burden of proof that applies in a Section 1983 civil lawsuit for money damages is very different from the burden of proof necessary to prevail in a criminal prosecution against a rogue police officer. In almost any civil trial, the applicable legal standard for the burden of proof is typically a “preponderance of the evidence.” This means that the evidence in favor of the claim outweighs the evidence against it, even if only slightly.

The burden of proof that applies in a criminal prosecution is guilt “beyond a reasonable doubt,” which is normally a much more difficult standard to meet. In other words, it is easier to win a lawsuit against someone than to successfully prosecute them for a crime. Although the doctrine of qualified immunity does complicate matters, it can be invoked in either a civil lawsuit or a criminal trial.  

This disparity between the criminal and the civil versions of the burden of proof is one of the main reasons why O.J. Simpson was acquitted of the murders of Nicole Simpson and Ron Goldman in 1995, but found liable in 1997 for $33.5 million in wrongful death damages for the deaths of the same two victims.

The Impact of Cell Phones, Squad Car Videos, and Body Cameras

Modern technology has dramatically altered the legal landscape when it comes to excessive force cases, because encounters between police and citizens can be (and usually are) filmed by bystanders. In addition, most police are required to wear body cameras to film their encounters, and squad cars are equipped with cameras as well. Civil rights claims that were once impossible to prove are now becoming commonplace.

Qualified Immunity: An Unfair Legal Defense Weapon?

The primary defense used by accused officers in Section 1983 cases, and in criminal prosecutions against officers for the excessive use of force, is known as “qualified immunity.” Qualified immunity is a principle that has not been codified in any law passed by Congress. Instead, it is a court-made law. 

In a nutshell, qualified immunity allows police officers and other government officials immunity from civil or criminal liability – or from even standing trial – when performing discretionary acts in the line of duty, such as apprehending or arresting a criminal suspect. The reasoning behind qualified immunity is that it would be unfair to subject the decisions made by an officer, often made under great pressure, to after-the-fact second-guessing.


A very controversial aspect of the qualified immunity doctrine is that proving negligence (carelessness) by the defendant is not enough to overcome a defense of qualified immunity. The idea is that nobody would want to become a police officer if a momentary lapse in judgment – which everyone experiences from time to time – could subject an officer to financial ruin or even prison time.

Nevertheless, intentional or outrageous acts used against a victim of excessive force can overcome a defense of qualified immunity, regardless of whether the defense is raised in a Section 1983 civil case or in a criminal case. A possible example is the second-degree murder charge against officer Derek Chauvin. Chauvin’s lawyer is certain to raise a qualified immunity defense, for example, although this defense may or may not be successful.

The “Clearly Established Law” Principle

To strip an official of qualified immunity and thereby subject him to legal liability for his actions, the official must have violated “clearly established statutory or constitutional rights of which a reasonable person would have known”. It is irrelevant whether the officer himself knew of these rights — all that matters is whether the hypothetical “reasonable person” would have known of them.

A right is considered “clearly established” if prior case law has addressed the conduct in question, and in a manner that leaves little or no doubt as to the illegal nature of the official’s conduct. In other words, prior case law must include a case with similar facts in which it was determined that the conduct in question is illegal. The main problems with the “clearly established law” principle include:

  • Although the Supreme Court can establish the law for the entire US, it is not obvious that a court in Texas has the power to establish the law that applies in New York. Consequently, a right might not be clearly established nationwide unless the Supreme Court has ruled on the issue.
  • Critics allege that the “clearly established law” protects qualified immunity, but only for officials who find new ways to violate someone’s rights.

Excessive Force vs. Qualified Immunity: The Irresistible Force Meets the Immovable Object? 

Ultimately, the trial of the officers in the George Floyd case is likely to revolve around the concepts of excessive force vs. qualified immunity. Qualified immunity has come under increasing scrutiny and criticism in recent years, and the pendulum has swung back and forth many times since 1871. Currently, however, the pendulum seems to be swinging strongly in favor of limiting the scope and effectiveness of qualified immunity.

Supreme Court Case Law Development of the Doctrine of Qualified Immunity over the Last 40 Years

Many changes have taken place in the doctrine of qualified immunity over the past few decades. The following is a summary of some of the cases that have reinterpreted this doctrine:

  • Harlow vs. Fitzgerald (1986): The Supreme Court originally defines the doctrine of qualified immunity.
  • Malley v. Briggs (1986): Qualified immunity does not protect a police officer who wrongfully arrests someone on the basis of an obviously faulty arrest warrant.
  • Anderson v. Creighton (1987): Qualified immunity applies to an officer who conducts an illegal search if a reasonable officer would have believed the search was lawful, based on “clearly established law,” and the information possessed by the officer at the time of the search.
  • Saucier v. Katz (2001): A qualified immunity defense must be asserted early in legal proceedings because it is a defense against standing trial at all, not a defense against legal liability. Qualified immunity can be overcome if the defendant violated a “clearly established constitutional right.” 
  • Pearson v. Callahan (2009): It is within a court’s discretion whether to apply the Saucier “clearly established constitutional right” test.

2018 Reforms: The First Step Act

The momentum in favor of limiting the qualified immunity defense has been shifting since long before the Floyd case arose. On December 21, 2018, for example, Congress passed the First Step Act. Although the First Step Act contains many provisions, among its most prominent features are new restrictions on the use of force by the police. 

Among the First Step Act restrictions are prohibitions on solitary confinement for juveniles, the use of restraints on pregnant inmates, and the increased use of de-escalation procedures to resolve conflicts without the use of violence.

The US Supreme Court Is Taking a Fresh Look at Qualified Immunity

The US Supreme Court is currently considering taking cases that would allow it to overturn or weaken the principle of qualified immunity. Although it is unlikely that the Supreme Court will overturn qualified immunity, it would not surprise many observers if its protections were significantly limited.

Take Action: We’ve Got Your Back

If you believe you may have a claim for excessive force by the police, or if you believe your constitutional rights were violated by the government in some other way, contact Hacker Murphy immediately, either online or at  (518) 284-3183, to schedule a free initial consultation. We maintain offices in Albany, ColonieSchenectady, Saratoga, and Troy.