LOUISVILLE, Ky. — Pressure is building in Louisville and across the country as people await a decision on whether the officers who killed Breonna Taylor will be charged.
In the meantime, experts are providing insight on what’s considered when deciding whether or not to charge an officer and how difficult it can even be to sue police officers. There is, after all, a civil suit against the three since Taylor’s family filed a wrongful death suit.
There’s something called "qualified immunity" for government officials, including police officers. It’s been known to make it difficult to hold them accountable, at least through civil lawsuits.
“It makes it extremely difficult to hold police officers accountable,” said one University of Louisville law professor Sam Marcosson.
Marcosson teaches at the UofL Brandeis School of Law. He says qualified immunity is an argument that can act as a shield for officers being sued, often used in Kentucky and across the country.
“It provides the defendant a strong shield against being held liable, even if they violated a citizen’s civil rights,” Marcosson explained.
The Supreme Court created the doctrine of qualified immunity. Marcosson explains it’s used in an officer’s defense when the officer argues they did not know what they did, such as a search or seizure in a person’s home, violated civil rights like the fourth amendment.
"The argument is clearly that, the officers would make is, they would not have known that a no-knock warrant or the way they executed it could violate someone’s civil rights,” Marcosson explained the hypothetical argument. “Or, it was a violation of their fourth amendment rights and so they can’t be held liable under qualified immunity."
The justification for qualified immunity is that people like government officials are often required to make quick decisions while carrying out their jobs.
Aside from the wrongful death suit, what about the potential for a criminal case? All eyes are on Attorney General Daniel Cameron as he investigates whether or not to charge the officers involved in the Taylor case.
“You never have a clear consensus from a community perspective, again, law enforcement, the judicial arena, and families, on the decision. It’s usually an emotional rollercoaster for everybody,” said community activist Christopher 2X, of Christopher 2X Game Changers.
Marcosson has also spoken on virtual panels with fellow attorneys about the potential for a criminal trial.
"Any of those [criminal] charges are going to be subject to the officers saying they acted in self-defense because Mr. Walker fired at them first. So, the attorney general I’m sure is taking a very close look at the sequence, at the officers’ testimony, anything they have said in reports, to try to make a determination of whether or not a self-defense claim that would almost certainly be at issue, whether that claim could be successful on the part of the police officers," he said.
Michael Losavio, Assistant Professor at the UofL Department of Justice Administration said, “It’s also interesting to note that the way Kentucky’s self-defense statute is written…it gives a lot of extra protections to law enforcement, especially taking away protection from the person whose house they’re entering…but only if the person whose house they’re entering knows they’re police officers.”
Marcosson says qualified immunity makes it difficult for those who have been violated to receive some type of remedy, and he says the doctrine is flawed.
“Getting remedies for people that have had their rights violated, qualified immunity is in my view, the single biggest barrier,” he said. “I think it’s deeply flawed, that there’s no justification or basis for it in the law. The Supreme Court kind of made it up.”
Spectrum News 1 asked Taylor’s family attorneys over the wrongful death suit to weigh in on qualified immunity and how it could affect the suit. Their comment will be provided once received.