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Calls for police reform have also prompted calls for a review of qualified immunity. But what is it, and how does it work?

The Supreme Court declined to take up cases dealing with qualified immunity, which some lawyers say shields officers from liability in cases of police misconduct.

SAN ANTONIO — On Monday the Supreme Court declined to take up any cases dealing with qualified immunity. Though, as calls for police reform mount, so too do calls for a review of the provision Supreme Court Justice Sonia Sotomayor has called an "absolute shield" from liability in cases of police misconduct.

"It basically says that if a government worker, civilian or law enforcement, is working in their official capacity, that they have some degree of protection from liability in a lawsuit," said attorney T.J. Mayes, who penned an op-ed for the San Antonio Express-News calling for reform to qualified immunity.

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Mayes said the initial purpose of qualified immunity was to protect government employees from frivolous lawsuits, but in practice, it all but prevents suing individual officers, even when their conduct is egregious. 

"The way it's played out over time and the courts have interpreted and qualified immunity in such a way that it actually functionally acts as an absolute shield for law enforcement officers," Mayes explained. "So victims of police brutality have to clear a very high bar to even make a claim in federal court that their constitutional rights have been violated. And this has served as a functional barrier to people being able to file claims."

Attorney Daryl Washington's law firm represents the families of Marquise Jones, Charles Roundtree, Davante Snowden, Taylor Singleton, Antronie Scott and others directly impacted by officer-involved shootings.

Demonstrators have called for the Bexar County District Attorney's Office to reopen the cases into Jones, Scott and Roundtree's fatal shootings, which occurred at the hands of San Antonio police officers.

Washington said in his experience litigating cases, qualified immunity has given officers a "free pass" in many cases, but has found it's not a total bar to holding individual officers accountable. He said the aspect of qualified immunity that makes it so difficult to file a lawsuit is that attorneys have to show the officer's conduct violated "clearly established law." In recent interpretations of qualified immunity, Washington and Mayes said courts have essentially required that plaintiffs show the circumstances of their case are identical to prior cases.

"If somebody beats you with a club in one circumstance and beats you with a pistol in the next circumstance, they're beating you in both circumstances," Mayes said. "But the facts are not identical. So it's just it's a ludicrous test."

San Antonio Spurs head coach Gregg Popovich was among nearly 1,500 people with the Players Coalition who endorsed the Ending Qualified Immunity Act introduced nearly two weeks ago by U.S. Reps. Justin Amash, L-Mich., and Ayanna Pressley, D-Mass. 

According to a release from Amash's office, the bill would "eliminate qualified immunity and restore Americans' ability to obtain relief when state and local officials, including police officers, violate their legal and constitutionally secured rights."

Mayes said while it's unlikely to be approved in Congress, it creates an opportunity for compromise and reform.

Should reforms be made to qualified immunity, or if it's done away with altogether, plaintiffs will not be able to recover much from individual officers. But, Mayes said for families and victims of police brutality, it's seldom about money.

"People are far less driven in the court system by money than folks would expect," Mayes said. "A lot of times people just want there to be a finding that this person violated their constitutional rights. They want somebody to acknowledge that something wrong happened to them. And when the cops are fired and they get their jobs back with a slap on the wrist when they're not indicted, people want to have some sort of accountability for these people. I think a big ground swell of protests and a lot of the anger out there is that there is no avenue for accountability."

Washington agreed, saying, "If you were to take a poll of most people and say, 'Do you want $5 million? Or do you want this officer held responsible for taking your kid's life?' 99.9% would say, 'I want that officer held liable for taking my child's life and to make sure that that doesn't happen to anyone else.' So that's why these cases are very important."

Charley Wilkison, the executive director of CLEAT, which is one of the largest law enforcement union in the state, said any moves to curtail qualified immunity would not come without consequence. 

"They're not going to be OK with placing their lives in danger, in between danger and innocent people, if they're gonna be second guessed at every turn and then become also financially liable for those actions," Wilkison said. 

Mayes said officers are afforded additional protections with qualified immunity, and Washington said the provision often gives officers an unfair the benefit of the doubt. Wilkison, however, said the profession is heavily regulated.

"If you're going to talk about changing their immunity status, you're going to change the level of officer that you get," Wilkison said.

Wilkison added that if the community is upset over the kind or quality of officer being hired to patrol the streets, it's a matter to take up with local leaders.

"If we don't like the people we're hiring, the union is not charge of hiring," Wilkison said. "We don't get one word of say in that, and so there's a lot of misinformation out there."

Mayes said he disagrees with the notion that allowing bad officers to be sued for their misconduct will decrease the quality policing, adding that this was an argument presented when body cameras and dash cameras were first introduced.

"I don't buy that this idea that if there's more transparency in the system and more accountability in the system it hurts good police officers," Mayes said. "I think that it hurts the bad apples. And the best way to save a bunch of apples is to remove the bad apples. That's the way you keep the other apples good.  I think that reforming qualified immunity would help keep the very good police officers."

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