On the heels of news that police in Buffalo, N.Y. would not be criminally charged for brutally shoving a 75-year-old protester to the ground came video of officers in nearby Rochester pepper-spraying an emotionally traumatized nine-year-old girl as she begged for mercy in the back of a squad car. Other horrific recordings show police methodically squeezing the life out of George Floyd, Daniel *****, and Tony Timpa — the latter after he called 911 for help while experiencing a mental-health incident.
And while public confidence in police has never been lower, the cause has never been clearer: qualified immunity. Qualified immunity is a judge-made legal defense that prevents police and other government officials from being held civilly liable for violating people’s rights. To overcome the defense, civil rights plaintiffs usually have to identify a prior case with identical facts as their own. In other words, it’s quite common for courts to say “Yes, your rights were violated — but there’s no prior case where someone else’s rights were violated in quite the same way, so you lose.”