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The White House

Former Minneapolis police officer Derek Chauvin faces murder and manslaughter charges for kneeling on George Floyd's neck until he stopped breathing. But even if Chauvin is convicted, Floyd's family may not be able to pursue claims under a federal statute that authorizes lawsuits against government officials who violate people's constitutional rights.

The uncertain prospects for the lawsuit Floyd's relatives plan to file underlines the unjust and irrational consequences of qualified immunity, a doctrine that shields police from liability for outrageous conduct when the rights they violated were not "clearly established" at the time. Congress should seize the opportunity created by Floyd's May 25 death and the nationwide protests it provoked to abolish that doctrine, which the Supreme Court unlawfully grafted onto the Civil Rights Act of 1871.


Was it "clearly established" on May 25 that kneeling on a prone, handcuffed arrestee's neck for nearly nine minutes violated his Fourth Amendment rights? The issue is surprisingly unsettled in the Eighth Circuit, which includes Minnesota.

The U.S. Court of Appeals for the Eighth Circuit blocked civil rights claims in two recent cases with broadly similar facts: handcuffed detainees who died after being restrained face down by several officers. Unlike those detainees, Floyd was not actively resisting at the time of his death, except to repeatedly complain that he could not breathe.

While that distinction could make a difference in the constitutional analysis, we can't be sure. Even if the Eighth Circuit concluded that Chauvin's actions were unconstitutional, it could still decide the law on that point was not clear enough at the time of Floyd's arrest, meaning Chauvin would receive qualified immunity.

The Eighth Circuit could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut. To defeat qualified immunity in this case, says UCLA law professor Joanna Schwartz, a leading critic of the doctrine, Floyd's family "would have to find cases in which earlier defendants were found to have violated the law in precisely the same way."

This term the Court had 13 opportunities to revisit qualified immunity, but it has not accepted any of those petitions and so far has rejected all but one. Those rejected cases included one that posed this question: "Does binding authority holding that a police officer violates the Fourth Amendment when he uses a police dog to apprehend a suspect who has surrendered by lying down on the ground 'clearly establish' that it is likewise unconstitutional to use a police dog on a suspect who has surrendered by sitting on the ground with his hands up?"

The U.S. Court of Appeals for the Sixth Circuit thought not. Dissenting from his colleagues' refusal to review that decision, Justice Clarence Thomas reiterated his doubts about qualified immunity, saying, "There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe."

Given the Supreme Court's lack of interest in reconsidering qualified immunity, Congress has a responsibility to reassert its legislative powers by revoking this license for police abuse. Last week, Schwartz and more than 300 other law professors urged Congress to do so, noting that the doctrine gives cops not only "one free pass" but also a "continuing free pass" by allowing courts to block claims without ruling on their merits, thus ensuring "that no law becomes clearly established."

The Ending Qualified Immunity Act, which Rep. Justin Amash (I-MI), introduced last month, so far has 64 cosponsors, all but one are Democrats. The situation is similar in the Senate, where Mike Braun (R-IN), recently unveiled the Reforming Qualified Immunity Act, which would narrow the doctrine and make municipalities liable for police misconduct.

This issue is a test for conservatives who defend the rule of law and the separation of powers. Both of those principles are undermined by a judicially invented loophole that allows government officials to escape accountability when they abuse their powers.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

Poll: Most Parents Oppose Rapid School Reopening

Numerous local school systems around the country are plowing ahead with plans to resume in-person instruction despite growing evidence that children are just as capable of spreading the coronavirus as adults.

Classes were set to begin on Monday in Baker County, Florida. Masks for students will be optional, not required. "It looks like it's back to normal this morning, honestly," a local television reporter observed as parents dropped their kids off in the morning. Many students wore no face coverings.

The Trump administration and the GOP have pushed for full reopening of schools for months."Schools in our country should be opened ASAP," Donald Trump tweeted in May. "Much very good information now available."

"SCHOOLS MUST OPEN IN THE FALL!!!" he reiterated on July 6.

"The science and data is clear: children can be safe in schools this fall, and they must be in school this fall," demanded Rep. Andy Biggs (R-AZ) on Aug. 1.

"I believe our schools can, and should rise to the occasion of re-opening for in-person education this fall," agreed Rep. Andy Harris (R-MD) two days later.

"The CDC and Academy of Pediatrics agree: We can safely get students back in classrooms," tweeted House Minority Whip Steve Scalise (R-LA) last Tuesday.

But while Scalise, Mike Pence, and Secretary of Education Betsy DeVos have all cited the American Academy of Pediatrics in their arguments for reopening, a new study by the group and the Children's Hospital Association raises red flags about how safe that will be.

Their report found 338,982 reported coronavirus cases in children as of July 30 in the United States. Between July 16 and July 30, the nation saw a 40% increase — 97,078 new infected children.

Last week, a high school student in an Atlanta suburb posted a photo online showing few students wearing masks in a crowded school hallway. Since that time, at least six students and three adult employees in the school have reportedly contracted the coronavirus, and the school temporarily has switched to online classes.

Another Georgia school district has already seen at least 13 students and staff members test positive since reopening a week ago.

A recent study in South Korea found that children aged ten and older spread the coronavirus at the same rates adults do. A separate study in Chicago suggested young kids might also be effective spreaders.

These contradict the false claims made by Trump and his administration that kids have an "amazing" near immunity to COVID-19.

"If you look at children, children are almost — and I would almost say definitely, but almost immune from this disease, so few. They've got stronger, hard to believe, and I don't know how you feel about it, but they have much stronger immune systems than we do somehow for this," Trump told Fox News on Wednesday.

"You got to open the schools. They have a stronger immune system even than you have or I have," he told Barstool Sports on July 23. "It's amazing. You look at the percentage, it's a tiny percentage of one percent. And in that one case, I mean, I looked at a couple of cases. If you have diabetes, if you have, you know, problems with something, but the kids are in great shape." Children have made up nearly nine percent of all cases, even with schools mostly closed.

And DeVos incorrectly said in a July 16 interview, "More and more studies show that kids are actually stoppers of the disease and they don't get it and transmit it themselves."

In early July, the Centers for Disease Control and Prevention issued guidelines for how schools could operate more safely during the pandemic.

Trump publicly ridiculed the guidelines, dismissing them as "very tough & expensive" and "very impractical."

Published with permission of The American Independent Foundation.