There's a legal obstacle that's nearly impossible to overcome when police officers and government officials violate our constitutional and civil rights.

But when Floyd’s family goes to court to hold the officers liable for their actions, a judge in Minnesota may very well dismiss their claims. Not because the officers didn’t do anything wrong, but because there isn’t a case from the Eighth Circuit U.S. Court of Appeals or the Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for eight minutes until he loses consciousness and then dies.

And such a specific case is what Floyd’s family must provide to overcome a legal doctrine called “qualified immunity” that shields police and all other government officials from accountability for their illegal and unconstitutional acts.

The Supreme Court created qualified immunity in 1982. With that novel invention, the court granted all government officials immunity for violating constitutional and civil rights unless the victims of those violations can show that the rights were “clearly established.”

A virtually unlimited protection
Although innocuous sounding, the clearly established test is a legal obstacle that’s nearly impossible to overcome. It requires a victim to identify an earlier decision by the Supreme Court or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the official is immune. Whether the official’s actions are unconstitutional, intentional, or malicious is irrelevant to the test.