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Phillip J. Murphy Attorney at Law New City Criminal Defense Attorney
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If The US Supreme Court Modifies or Abandons Qualified Immunity, This Could Transform Police Arrests, Accountability, And Indictments


The tragic death of George Floyd, an unarmed man who was killed by a police officer during an arrest after the officer kneeled on his neck for more than eight minutes, has once again brought up this issue of qualified immunity and accountability for police officers and how it affects criminal defense. While originally created to try and protect the government from frivolous lawsuits, many argue that it has turned into an “absolute shield” to protect police who have engaged in excessive force and unreasonable search and seizure in violation of defendants’ Fourth Amendment rights.

While the officer who killed George Floyd is now being charged with manslaughter and third-degree murder, most of the time, even when the courts have found that the police have used excessive force and caused severe, permanent injuries and/or death to defendants, they have still provided immunity to police officers. However, during its private conference in late May, the US Supreme Court considered a number of petitions submitted challenging qualified immunity. If the Court ultimately agrees to hear any one of them as cases later this year, it could end up modifying or completely abandoning the doctrine, and there is a good chance that it will, as two justices have already made specific statements indicating that the doctrine should be reconsidered. Specifically, Justice Sonia Sotomayor has indicated that the Court has turned qualified immunity into an insurmountable police defense, with the court actively intervening in cases in order to favor the police. If ultimately modified or abandoned, the Court could transform a number of search and seizure practices that occur during arrests, as well as police accountability and liability.

The Current Standard Makes It Virtually Impossible To Hold Officers Accountable

Currently, officers are not held liable for excessive force unless they violate “clearly established law,” which, as interpreted by the courts, essentially means that the officer has to repeat the exact actions that were already decided to be unconstitutional in another case.  Thus, for example, if a police officer accidentally shoots a child while trying to shoot an animal, while neither the child nor the animal posed a threat to the officer or anyone else, even if this is found to be egregious, wrong, excessive, etc., the officer will not be held liable unless those same circumstances have been ruled on before. This is where the main challenge comes for those harmed by police, as the court has provided a very narrow definition of what constitutes clearly established precedent, making it essentially Impossible to ever find that police have violated it.

What About Other Factors? Eric Garner & The Chokehold Case

While many would argue that grand juries frequently decide not to charge officers because they give them the benefit of the doubt due to a heightened credibility; some believe that autopsy reports – if they indicate that other factors, such as a heart condition, contributed to the victim’s death – also play a part. That is one view held in what is perhaps the most notorious case involving qualified immunity here in New York: The case involving Eric Garner, who was unarmed and killed by a New York police (NYPD) officer during an arrest for selling cigarettes in 2014 after repeatedly saying “I can’t breathe” once the officer placed him into a chokehold.  After hearing the officer testify, the grand jury decided that there was not enough evidence to move forward with charges against him, even though chokeholds had been barred by the NYPD since the 90s.

If You Are Charged with A Crime In New York & Your Rights Are Violated, Contact Our Office Right Away

If you have been the victim of excessive force, illegal search and seizure, or any other civil rights violations in the course of charges brought against you here in New York, contact experienced New York criminal defense attorney Phillip J. Murphy today for the very best in legal representation.



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