One of the most galling things about the police killings that have grabbed national attention, both in recent weeks and in years past, is just how rare it is for a police officer to face any sort of consequence for ending someone’s life. One reason for this is qualified immunity, which shields government officials, and police officers in particular, from being prosecuted for a broad array of constitutional violations.
Ordinary people—whether doctors, lawyers, teachers or store clerks—are expected to follow the law. If they violate someone’s rights, they can be held responsible. They can be sued. They can be charged with a crime. Those with qualified immunity hold far greater protections in this regard. And that’s a problem when it comes to the matter of the use of force by police officers.
Qualified immunity shields public officials
Qualified immunity was originally intended to shield law enforcement officers from frivolous lawsuits and financial liability, especially for complicated situations in which they are forced to make split-second decisions. In practice, it means public officials, including police officers, are held to a much lower standards of behavior: They can only be held responsible for constitutional violations that fall under the realm of “clearly established” case law. When it comes to defining these “clearly held” standards, there is a stunning lack of precedent, a fact that has led to a catch-22: because legal precedent is thin, very few cases challenging qualified immunity are taken up, so now legal precedents are set. The snake eats its own tail forever, and black people keep being killed in the streets.
As UCLA law professor Joanna Schwartz said in an interview with ABC News:
“In order for a plaintiff to defeat qualified immunity, they have to find a prior case that has held unconstitutional an incident with virtually identical facts to the one the plaintiff is bringing. And over the last 15 years, the court has made it a more and more difficult standard for plaintiffs to overcome to go to trial.”
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An example of this is what happened when a SWAT team ruined Shaniz West’s home. The team had asked to search the residence, thinking West’s ex-boyfriend, who had a warrant out for his arrest, was inside. West said yes and gave them a key. The SWAT team then proceeded to smash her windows and deploy so many tear gas canisters inside that the toxic gas saturated her possessions and damaged her walls and ceilings, leaving her homeless for three months while repairs were made.
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When West sued, the court decided the officers’ actions fell under qualified immunity. Their ruling was based on the premise that because there was no previous case stating that when a homeowner gives consent for police to enter their house, this consent bars them from smashing windows and firing chemical weapons willy nilly, those things fell under qualified immunity.
There are numerous other examples of questionable actions of police officers being protected by qualified immunity. This includes officers in Dallas, TX, who shot a bicyclist 17 times, killing him, in a case of mistaken identity; an officer in Heber City, Utah, who threw an unarmed man to the ground after pulling him over for a cracked windshield, leaving him with brain damage; and a Maryland officer who shot a man who was trying to stab himself while experiencing a mental health crisis.
Protections for police officers have been bolstered by the courts
A recent Reuters analysis revealed that in recent years, police protections under qualified immunity have been bolstered by the courts’ increasing tendency to rule in favor of officers, thus making it harder to argue against qualified immunity at all.
From 2017 to 2019, police won 56% of the cases in which they claimed qualified immunity, a sharp increase from previous years, when police officers won 43% of the time. Officers are also granted immunity before all the facts have been presented and given the option for immediate appeal, a privilege unavailable to other litigants.
Tl,dr, if your constitutional rights are violated at the hands of a police officer, you have very little legal recourse for receiving justice.
How might qualified immunity be abolished?
There is a chance the Supreme Court will weigh in on the fight to end qualified immunity, as it is at the heart of eight pending cases which they could choose to take up. Justices Sonia Sotomayor and Clarence Thomas have called for re-visiting the doctrine.
Meanwhile, in congress there has been discussion of legislation to limit the use of qualified immunity, including the “Justice in Policing Act,” which was released by House Speaker Nancy Pelosi, and would prevent law officers from raising a qualified immunity defense in civil rights cases. Rep. Justin Amash’s “Ending Qualified Immunity Act,” meanwhile, would likewise prevent state government officials from raising a qualified immunity defense in civil rights cases.
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