Like a flare over a battlefield, the horrific killing of George Floyd is illuminating the fissures, cracks and outright bottomless chasms in our justice system. One pressing question: should qualified immunity as a defense to a constitutional violation be eliminated or reformed? The Justice in Policing Act of 2020, introduced in the House of Representatives on June 8, contemplates eliminating the defense. Three Justices on the U.S. Supreme Court have recently dissented from the Court's denial of cert petitions seeking to review the defense's continued viability. And on June 12, Judge James A. Wynn Jr. of the U.S. Court of Appeals for the Fourth Circuit took the extraordinary step of publishing an op-ed in The Washington Post, "As a judge, I have to follow the Supreme Court. (But) It should fix this mistake (of qualified immunity.)" He argues that the defense leads to a double injustice: citizens as victims and police as unaccountable perpetrators of the injustice.

What is qualified immunity? Here is the basic wiring. We have a Bill of Rights listing out our Constitutional rights. In 1871, Congress enacted a civil rights act empowering citizens to sue for a violation of those rights. A key provision is called Section 1983. It is this provision that gives plaintiffs access to federal court to vindicate a violation. All was quiet on the civil rights front, however, until 1986 when the U.S. Supreme Court, in Tennessee v. Garner, struck down a Tennessee statute allowing the police to use deadly force to stop a suspected felon who was fleeing the alleged scene of a felony. (Twenty-one states had these statutes.) The Court held that taking a person's life was the ultimate unlawful seizure under the Fourth Amendment. (Whatever your beliefs, I invite the reader—as I do my students in my Civil Rights course—to contemplate the date of the decision as juxtaposed with today. To paraphrase Faulkner, the past is not dead and, in fact, it is not even the past.)

While the 1980s saw expansion of rights it also saw an expansion of defenses, namely the refinement of the defense of qualified immunity whereby police officers (and other government agents) are absolved of liability for the violation of a constitutional right provided that their conduct violated a "clearly established constitutional right of which a reasonable person would have known." The idea was, according to the Court, to provide "breathing room" for police officers who often are called upon to make split-second decisions. The Court believed that officers should not be liable when they make a split-second decision that turns out to be a poor exercise of judgment.

What might have seemed a clear standard to the Supreme Court was anything but to lower courts, which splintered on the meaning of "clearly established," One group of courts, including the Fifth Circuit, defined it to require—for a finding of liability—a very substantial degree of similarity to past conduct in which liability was found. No similarity, no liability—even if a constitutional right was violated. Examples abound; police enter the yard of a private home in pursuit of a suspect, shoot at the family dog that allegedly threatens them, but end up shooting a child in the knee, when the child was only 18 inches away; the owner of a home gives the police the keys to her house to search for a suspect, but the police allegedly tear gas the house instead of using the key thus making it uninhabitable for three months; police shoot a woman on her porch (holding a knife blade face down) who allegedly threatened her roommate while the roommate was six feet away but was not advancing towards the roommate. In each case a court held that there was a constitutional violation but no liability because the courts could find zero case law with a substantially similar fact pattern and thus the police officers had no notice that their alleged conduct would impose liability upon them. The ying of a new claim became misaligned with the yang of a new defense.

Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit (formerly a justice on the Texas Supreme Court) continues his wordsmithing as a federal judge when he dissented in a Fifth Circuit case, Zadeh v. Robinson and summed up objections shared by many to qualified immunity, "qualified immunity smacks of unqualified immunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—so long as they were the first to behave badly."

Not all courts agree and use other formulations such as "fair notice," which looks to analogous situations and not essentially identical ones to a sliding scale in which the more egregious the alleged conduct the less need for a more specific case for notice purposes. In short, standards that will isolate whether there is both an actual and material conflict in the stories told by the litigants, which only a trier of fact can resolve. And this, in turn, sends the issue of what is proper policing to the citizens of a community.

Not all agree. Check out Mark Callahan's blog "The Objectively Reasonable Officer," and its June 8 post that the elimination or recalibration of the defense will make it very difficult to recruit new police officers or to retain incumbent ones. He also cites a study from the UCLA School of Law that only 12% of motions to dismiss based on qualified immunity are granted. In short, as the Texas expression goes, "if it ain't broke, it don't need fixing."

A crescendo for change is arising. A June 10 decision from the Fourth Circuit leaves no doubt. A homeless person is detained by five police officers, He is restrained. The officers' version: we felt a knife up his sleeve and, afraid for our lives, we disengaged and shot him 33 times. The estates' version: the citizen was secured and incapacitated and thus the shooting was excessive force in violation of the Fourth Amendment and was so egregious that qualified immunity provided no defense.

The appeals court reversed the trial court's grant of summary judgment to the officers. Its language is remarkable: "Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity of black lives … (The court catalogues deaths of blacks by the police including Mr. Floyd) This has to stop. To award summary judgment for fear-based use of deadly force would signal absolute immunity," Change will come. When it does, the public and the police, be better off.

Michael P. Maslanka is an assistant professor of law at University of North Texas at Dallas College of Law. His email is [email protected].