Washington (CNN)The protests and clashes unfolding across the country in response to the killing of George Floyd have upheld a resonant message for courts to consider: Law enforcement accountability is missing in the justice system.
In recent years, legal scholars, judges and justices on all sides of the ideological spectrum have criticized the legal doctrine known as "qualified immunity," arguing that it is not grounded in the proper legal authorities and too often shields officials from accountability.
"When the Supreme Court grants qualified immunity ... it sends a message to law enforcement that there are not consequences for violating the law and it sends the message to the people that their rights don't matter," UCLA law professor Joanna Schwartz said.
Under the doctrine, an officer will not be liable even if he violated the Constitution unless it was "clearly established" by prior cases that his conduct was unconstitutional.
That requires a high bar and makes it difficult to win unless the situation is similar to a prior case with nearly identical facts. In some cases with unique fact patterns, of which there are many, officers have been granted immunity even if they have been found to have acted in violation of the Constitution.
"Everyone has the potential for adverse encounters with state actors, whether it's members of law enforcement, public school officials, city council members, or other municipal employees," said Jay Schweikert, a policy analyst at the Cato Institute. "So long as the Supreme Court continues to permit this unlawful shield for government agents, no citizen will have any assurance that their rights will be respected."
CNN legal analyst and former federal prosecutor Laura Coates said "there has been an existing urgency" for the court to reevaluate its position.
"There has actually been a number of cases that should have prompted the court to reassess qualified immunity, which really is a concept they created, and now have an even bigger obligation to clarify so that qualified immunity is not transformed irrevocably into murder with impunity," Coates said.
The doctrine was originally intended to protect government officers from financially frivolous lawsuits, allowing them a broad amount of discretion.
Fitzgerald filed suit against Nixon and other government officials alleging the connection between his testimony and his termination. While Nixon was found to have presidential immunity in a separate case, the question the court was forced to decide was about the president's aides.
Though the Fitzgerald decision was handed down in relation to White House aides, it has far-reaching implications for other officers of the law, such as police officers. As things stand, a public official who violates someone's constitutional rights can be sued only with a showing that the official violated "clearly established law."
Across the ideological spectrum, critics say that the courts that have developed the doctrine over the years have gone astray.
"The principle that government officials should be accountable for their violations of the Constitution is not a partisan issue. It's an American one," Boston University law professor Jack Beermann said in an interview with CNN. "Conservatives are just as concerned with abuse of government power as liberals are. And you combine that with what seems to be a rash of police misconduct in recent years and you can get a pretty strong coalition."
Scott Michelman, legal director of the American Civil Liberties Union, agrees there's an immediate need for the Supreme Court to address the issue.
"There's an incredible urgency as communities across the country seek accountability for police violence against individuals of color in particularly, to open up the courts, claim a constitutional violation and make sure officers aren't provided a get-out-of-court-free card when they violate people's rights," Michelman said.
"We are in the midst of a crisis of accountability in law enforcement, which means there's an urgent need for the court to address qualified immunity," Schweikert said. "As George Floyd's death tragically illustrates, for many people in this country, our culture of near-zero accountability for law enforcement is not an abstract public-policy concern, but a matter of life and death."
In many of the cases that the justices could choose from for the next term, proponents of the qualified immunity doctrine have said it protects police officers in a necessary way.
"Abandoning qualified immunity ... would leave hundreds of thousands of law enforcement officers exposed to potential liability, likely second guessing themselves in situations where a hesitation to act could mean the difference between life and death," the lawyers said in court papers.
Cases justices could take up next term
According to court papers, police officer Spencer Harris released the police dog to attack Baxter, who sustained an injury that brought him to the hospital. Brad Bracey, the other officer on the scene, failed to intervene in the attack.
"Our case presents some of the problems with qualified immunity very starkly," said Michelman, lead counsel representing Baxter in the case. "Everyone should know, and everyone does know, that putting your hands up is a universal symbol of surrender and it is completely out of bounds to attack somebody who has surrendered."
There are a handful of cases the justices could choose from dealing with claims of excessive use of force and unlawful search and seizure. The cases range from a petition from a doctor who said police illegally raided his office and patient files to a family of a hypothermia victim who they say should have been revived.
"These cases very frequently arrive from police use of force in particular circumstances," Hughes said. "When an individual or his or her estate alleges that a police officer used excessive force the officer will invariably raise a qualified immunity defense."