In the midst of worldwide protests triggered by the death of George Floyd during an arrest by Minneapolis police officer Derek Chauvin, the United States Supreme Court recently declined to consider cases challenging the doctrine of "qualified immunity," a legal defense to civil rights claims brought against police officers in misconduct and brutality cases. Many have criticized the broad application of the qualified immunity doctrine, arguing that it provides too much protection for police officers who use excessive force in carrying out their official duties. Justice Sonia Sotomayer has called the doctrine of qualified immunity "an absolute shield for law enforcement officers" against claims by victims. By refusing to hear the cases, the Supreme Court has left the police with significant legal protections for even seemingly egregious cases.

The legal analysis to determine whether a police officer is entitled to qualified immunity is a two-step process. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The court first looks at whether a constitutional right of the victim was violated. This could include a person's Fourth Amendment right against unreasonable searches and seizures. In order to be legally detained by police, a seizure under the Fourth Amendment is reasonable only when made with probable cause or reasonable suspicion. The Fourteenth Amendment protects a person when the State deprives him or her "of life, liberty, or property, without due process of law." A person's Fourteenth Amendment rights can be violated when police use excessive force. If a constitutional violation is established, the court then looks to the second step to determine whether the violated right is so clearly established that a "reasonable official" would understand that what he was doing violated that right. See Brennan v. Township of Northville, 78 F.3d 1152, 1154 (6th Cir. 1996).

The controversy surrounding qualified immunity arises in the application of this second step. Although case law suggests that "there need not be a case with the exact same fact pattern, or even 'fundamentally similar' or 'materially similar' facts" to overcome the immunity defense, in practice police often escape liability by arguing that without a prior decision with the same general facts they did not have fair warning that their actions were unconstitutional. See Cummings v. City of Akron, 418 F.3d 676 (6th Cir. 2005). These arguments were central to the 2018 U.S. Supreme Court case Kisela v. Hughes, where the police successfully invoked the qualified immunity defense to convince the court to dismiss the claims of Amy Hughes. In the case the police responded to a "check welfare" call and came upon Ms. Hughes speaking with her roommate outside of her house. Ms. Hughes held a kitchen knife at her side. She was not near the officers, was not suspected of any illegal act, and did not raise the knife or act in a threatening manner. When she did not immediately respond to verbal commands to drop the knife, Officer Kisela shot her four times leaving her seriously injured. A majority of the Supreme Court granted immunity to Officer Kisela for his actions, finding that a reasonable officer in Kisela's position would not know that using deadly force was excessive under the circumstances because such force was allegedly necessary to protect Ms. Hughes' roommate. The majority noted a lack of similar prior cases that would have put Officer Kisela on notice that his actions violated Ms. Hughes' constitutional rights. Justice Sotomayer wrote a lengthy dissent. In considering the second step of the qualified immunity analysis, Justice Sotomayer criticized the majority for applying too onerous a burden on the plaintiff. She stated that the "clearly established" inquiry "boils down to whether Kisela had 'fair notice' that he acted unconstitutionally." This does not, she emphasized, require a previous case showing that the very action at issue was previously held unlawful. She concluded that because "Kisela plainly lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter, he was not entitled to qualified immunity."

As the public demands accountability for police misconduct, courts will continue to grapple with the level of protection to afford officers through the doctrine of qualified immunity.