Been there done that. It’s complicated. There is a defense in civil cases against individual employees of the government called “qualified immunity”. Its purpose is to protect government employees from being sued over and over so much that they cannot complete their duties and thus impact the very citizens they are responsible to. It applies most often when a government employee is sued for violation of another’s civil rights, while under the color of law, under 42 U.S.C. 1983. In the Floyd case that is where a suit for damages (i.e. wrongful death) would be brought in federal or state court. It protects any government employee (i.e. police officers, teachers, etc.) from discretionary actions performed within their official capacity, unless their actions violated “clearly established” federal law or constitutional rights. It is intended to protect officials who “make reasonable but mistaken judgments about open legal questions” The problem in civil court is the language “clearly established”. Courts have held over and over that what means is that the subject factual circumstances of a particular case has occurred in the past and the law has been established in court that those circumstances clearly violated the individual’s rights under the 14th Amendment. It those two criteria are not meant it is an “open legal question”. However, it only applies to individuals since a 1983 lawsuit can only be brought against an employee not the employer (i.e. police department, city, etc)
I came close to losing a case in federal court representing an African American student in special education who was denied speech and language services because the district’s teachers thought he spoke African American English (AAE) or “ghetto talk”. Truth is he had a horrific speech impairment from birth that was never addressed. We were in front of a conservative African American Judge who kept questioning us on qualified immunity. His reasoning was that there was no “clearly established law” on the subject of AAE and a student claiming a speech impairment. Essentially his thinking was boiled down to “how would these teachers be expected to know and even if they did know was their any prior law that they knew they were violating”. Our response was there never would be if he applied qualified immunity to our case since every case brings a different set of facts. Naturally, the teachers attorney and district’s attorneys jump on the judges unfavorable comments to us and file a motion to dismiss the entire case. We eventually entered into a favorable settlement before the motion was heard since the opposing attorneys did not want to face a clear appeal brought my us. I also believe they felt the judge was wrong on both the facts and the applicable law.
I suspect that if the Floyd family files suit against the officers the initial defense will be qualified immunity. However, because excessive force cases have already been established as clear violation of one’s civil rights -i.e. to be free from harm or death from an officer, acting under of color of law, and who uses unreasonable and unnecessary force-that may not apply. In any even the doctrine of qualified immunity is under attack not only due to the Floyd case and others but also before the U.S. Supreme Court whose dissenting judges in other police brutality cases have expressed serious doubt as to its validity.
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