Police reform has been at the forefront of protests the past few weeks, following the death of George Floyd in Minneapolis.

The qualified immunity doctrine is getting a lot of attention.

“Qualified immunity is a doctrine that was created by the Supreme Court in 1967 in a case called Pierson v. Ray, and when the Supreme Court announced the existence of qualified immunity, they described it as a good faith defense,” Joanna Schwartz, a professor at the UCLA School of Law, said.

However, there have been debates on how this doctrine can be used.

In recent weeks, Congressman Justin Amash proposed the “Ending Qualified Immunity Act” (H.R. 7085).

“Qualified immunity is just another example of a justice system that is not working for people, and preventing people from getting the redress they deserve,” Representative Justin Amash (L-Michigan) said.

So, we dove into qualified immunity with Joanna Shwartz, a law professor who studies civil rights litigation, and Justin Smith, a sheriff in Larimer County, Colorado.

“Qualified immunity first of all has nothing to do with criminal immunity,” Sheriff Justin Smith said.

Smith has been with the Larimer County Sheriff’s Department for nearly three decades.

“Who in their right mind would build a career on running towards gun fire and confronting an armed suspect? Why would you do it without some type of civil protection?,” he explained.

We sat down with him as he explained why qualified immunity is important for his officers.

“I’d simply ask the question to the average American, is a police officer expected to be perfect in all of their actions in a split second?,” he asked.

Smith said without qualified immunity, one incorrect decision made by an officer could cost a lot.

“If you didn’t call that exactly right by one judges interpretation, that's a lawsuit,” he said.

“Every time the officer puts on the shirt, the badge, straps on the firearm, comes to work, every action they take responding to a case essentially is as if they went to Vegas and they walked up to the table, placed a five dollar bet, and in Colorado for example, would cost them up to $100,000. Who's going to make that bet?,” Smith explained.

However, those who want qualified immunity removed say the doctrine has changed over the years and it’s not necessary to protect officers who act in good faith when it comes to protection of rights.

“Concerns about split second decision making...are already protected from liability by the Supreme Court's construction of what the Fourth Amendment allows. Qualified immunity is unnecessary to do that,” Schwartz explained.

She went on to explain why she believes that qualified immunity isn’t necessary for the protection of money, either.

“I studied lawsuit payouts across the country over several years, I found that police officer personally contributed .02 percent of the total dollars paid to plaintiffs,” she said.

Schwartz said while the doctrine was originally created as a good faith defense, it has changed over the years to make it harder for people to file lawsuits against officers.

“In order to defeat qualified immunity, find a prior case with virtually identical facts in which a court announced that that conduct was unconstitutional,” she said.

Which has been an issue for James King from Michigan, who told a reporter he was assaulted by an officer in plain clothes in a mistaken identity case. The incident was caught on camera back in July 2014.

“The simple fact is the majority of this time this situation happens to anyone, they have no recourse,” King said.

Officers are often forced to make decisions in a split second.

“This is a risk taking profession,” Smith said. “We can say the criminal justice system isn't perfect and that's accurate. Nothing in society is perfect. I think it’s overall improved significantly over the years.”

But Schwartz thinks officers acting in good faith can be protected by other measures.

“Qualified immunity is not necessary or well suited to play that role in weeding out insubstantial cases,” she said.

Both Smith and Schwartz agree that when looking at proposed changes to qualified immunity on the federal and state level, it’s important to look at what officers the bill is including -- whether that be local, county, state, or federal officers.

“Congress’ bills at this moment only end qualified immunity for state and local officials,” Schwartz explained. “As we are thinking about state and local law enforcement, we should not overlook the role of federal law enforcement and other government officials.”

There's a renewed push to reform qualified immunity, a legal doctrine that protects police officers, along with some others, from civil lawsuits.

In Congress, Sen. Justin Amash of Michigan proposed a bill to eliminate qualified immunity entirely. It has bipartisan support.

Understanding why qualified immunity was established could help inform a vision for the future.

Imagine a scenario where you're walking down the street and someone clearly violates your rights. The rule of law says they should be held accountable and you'd expect that they would. But can the same be said about police officers who violate a person’s rights?

Qualified immunity protects public employees, like police officers, from being held personally liable for knowingly violating someone else’s rights, as long as the officer didn’t break any “clearly-established” laws in the process.

Critics argue qualified immunity tilts the scales of justice and makes it hard to hold officers accountable for crimes they admit to committing.

The legal path that led to qualified immunity started with the passage of the Civil Rights Act of 1871. Congress declared that every American has the right to sue any public employees who violate their rights.

Then, in the late 1960s, a Supreme Court ruling would start morphing the concept into what we know today.

It was 1967 when the court granted exceptions to police officers accused of violating rights if they acted in good faith and believed their actions were within the law. Another ruling, in 1982, shifted the burden entirely to the citizen, requiring they prove the officer’s actions broke a “clearly-established” right.

That means presenting a case where the Supreme Court found an official guilty of the same “particular conduct” under the same “specific context” as is being alleged. Without it, the officer is protected from liability.

The Supreme Court granted one exception for a particularly cruel case in 2002.

In June 2020, the Court declined to take up a petition asking it to re-examine qualified immunity. The order was unsigned, and Justice Clarence Thomas was the only one to write a dissent.

He wrote the “qualified immunity doctrine appears to stray from the statutory text.”

Justice Thomas and Justice Sonia Sotomayor have urged the court to take up the doctrine multiple times in the past. In 2018, Justice Ruth Bader-Ginsburg joined in a dissent authored by Justice Sotomayor. It said that the way the Court previously ruled on qualified immunity had established “an absolute shield for law enforcement officers.”