George Floyd, a forgery suspect, died after a police officer kept his knee on his neck for an unreasonably extended period. Mr. Floyd was black. And while the details are unfolding, it looks all too familiar to represent a pattern of hostile treatment that African Americans receive from a persistent segment of police officers. 

In my view, judges must share some of the responsibility for this state of affairs. 

Federal law makes it very clear that when state officials violate the constitutional rights of an individual, that person can sue for civil rights damages. 

But the Supreme Court and lower courts have carved out an exception. These decisions say that if the constitutional right was not “clearly established” then the official doesn’t have to pay any damages. 

And this doctrine has been used to say that unless almost the exact same facts have occurred and found to be unconstitutional in the past then it’s not clearly established. 

What’s worse is that the judges aren’t required to go ahead and rule whether or not the actions were unconstitutional so that it is settled for future cases. 

So, let’s assume that the officers in this Minnesota case are sued and they are given qualified immunity, then next year the same thing happens—another police officer kneels on a man’s neck excessively and kills him—that second officer will also get away with it because the court never announced a decision on the merits of the first case. 

This whole doctrine allows police departments to be less than meticulous about insisting that their officers always obey the Constitution. 

This doctrine applies in many other contexts. University officials consistently deny free speech rights on campus. But when they are sued for damages they claim qualified immunity and get away with it far too often. 

This whole doctrine needs to end. 

The first time an official disobeys the Constitution he should have to pay. If a citizen violates the law, he can’t say that he cannot be found guilty unless there is a parallel prior case that found this same kind of conduct to be illegal. 

Want to end racial disparity? Want to ensure free speech?

The courts must put an end to qualified immunity. The Constitution should bind every official every time they act.

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