Like many of you, I have been watching the news about the tragic and probably criminal death of George Floyd, and the ensuing outrage by thousands of people in the United States and around the world.

Who is accountable for the death of someone in police custody in the United States?  Responsibility for criminal conduct rests solely with the individual law enforcement officer(s) who directly caused the person's death. Civil liability should be borne by the law enforcement agency and political subdivision (city, county, state, or federal government), but rarely is.

So, why do law enforcement officers continue to use unlawful excessive force when his or her life is not in imminent danger? The answer includes primarily three reasons: 1) intellectually questionable judicial reasoning wherein the criminally liable officer is almost always entitled to qualified immunity "unless the unlawfulness of their conduct was "clearly established at the time," and violated a federal statutory or constitutional right. Reichle v. Howards, 566 U.S. 658; 2) the refusal to make cities, counties, states and the federal government monetarily pay for the officer's criminal conduct and victim's loss of life or injuries from unlawful excessive force; and 3) failure of legislative bodies to enact statutes to prevent judges from dismissing cases prior to juries rendering verdicts finding the government and the officer jointly and severally monetarily liable to the victim's family.

The doctrine of Respondeat Superior provides for an employer (including a political subdivision, i.e. a city, county, state or federal government) being held liable when its employee causes personal injury or property damage while the employee is performing his or her job. However, when a law enforcement officer unlawfully uses excessive force resulting in a person's death or serious bodily injury, the law enforcement agency and political subdivision are rarely held civilly liable. Why? The first reason is the intellectually questionable judicial "reasoning" mandating the law is "sufficiently clear that every reasonable official would understand what he or she is doing" is unlawful (Ashcroft v. a;-Kidd, 563 U.S. 731), "beyond debate" (Id.), and is literally meant to protect "all but the plainly incompetent or those [officers] who knowingly violate the law."  Malley v. Briggs, 475 U.S.335. Obviously, the doctrines of Respondeat Superior and Qualified Immunity applicable to excessive use of force matters is designed to provide officers, law enforcement agencies and political subdivisions a legal burden almost impossible for the George Floyds of our country to meet. The result is every defendant being dismissed from the victim's lawsuit before a jury hears any evidence. Welcome to judicial reasoning.

And, if a law enforcement agency or political subdivision is sued, it is allowed to file numerous "motions to dismiss" the lawsuit at every stage of the lawsuit including, when initially filed, after the discovery stage, after the Plaintiff concludes presenting his or her case at trial but before a jury reaches a verdict, after the jury finds the agency or government liable but before any appeal of the jury's verdict, and after (or if) the court accepts the jury's verdict when entering judgment, and of course during the appeal process. This procedure inures solely to the benefit of the government and arguably, "rigs" the judicial process completely in favor of the government. So, if the current law is written totally in favor of the government, why would any government entity pay even a pathetically small amount of money for the officer's unlawful use of excessive force?  The answer is it will not until every opportunity to dismiss the lawsuit against the agency and government has been exhausted.  This usually takes about 5 years. Welcome to governmental immunity.

Of course, these procedural flaws can be changed by statute or the courts (if found to violate a fundamental constitutional right like due process or equal protection) but the courts will never do so even though they have had countless opportunities over the decades to do so.  Judicial activism by the Supreme Court when it favors the government is much more politically acceptable than allowing the person accused of criminal conduct their rights to life, liberty and the pursuit of happiness.

As the U.S. Supreme Court has engaged in legal gymnastics to expand qualified immunity to practically total immunity, and the lower federal courts have their hands tied and are required to enforce procedurally rigged court processes, the responsibility for changing the law rests solely with Congress and the president, and each state's legislature and governor. It is the legislative and executive branches' responsibility to protect the people, and the courts responsibility to provide equitable due process and equal protection to all parties, not just the government. When the highest court in the land has reasoned its way into a legal corner also binding each and every federal appellate and district court with it, it is time for the state legislatures and Congress to exercise their authority to enact legislation to protect the citizenry.

Lastly, were you aware Texas has no "civil rights statute" protecting its residents from the criminal conduct of police officers acting pursuant to their official "color of law"?  Why? The hard truth is every law enforcement officer, association, union, and every police chief, mayor, sheriff, and county commissioner lobbies every state representative and senator to keep things just the way they are.

Can you imagine if a city or county had a jury verdict of $5, $10 or $15 million against it upheld on appeal? That city or county might have to raise taxes or lay off hundreds of employees, and that would be very distasteful to a mayor of county commissioners court, and we can't have that. Because we live in a time where "we the people" have government of government, by government, for government, and not government of the people, by the people and for the people, be prepared that George Floyd and the unknown number of other individuals who have been killed by the unlawful use of excessive force, in all likelihood, will have died in vain.

Dan L. Wyde is the managing partner of Wyde & Associates, specializing in commercial & fiduciary litigation, trust & probate, criminal defense and family law.  He is a former Dallas County criminal court judge and Board Certified in Criminal Trial Law, TBLS.