At this point, I should hope we have all heard and said the names George Floyd and Breonna Taylor. I should hope we have all said and heard the names of Eric Garner, Tamir Rice, Michael Brown, and countless others both on the list below and beyond. NPR’s Code Switch published the below list/graphic in their article “A Decade of Watching Black People Die”. As they point out, this is a very non-comprehensive list of black folks that have been killed by the police since the shooting of Eric Garner in 2014. Many of the names on this list are likely new to us, a sobering reminder of the number of black deaths that we never read or hear about. There are many names that are still not on this list.
According to the Washington Post’s Fatal Force database, which has been tracking the number of fatal shootings by the police since 2015, around 1,000 people are shot and killed by police each year, a number that has remained steady since they began the project in 2015. The project notes that though half the people fatally shot by the police are white, black people are killed at twice the rate of white Americans. As Code Switch points out, these numbers are haunting, and they do not even account for individuals who were killed or died in custody through other means.
Wherever you may be on the spectrum of feelings toward and education about movements to defund or abolish the police, we must recognize that there are certain systems within police culture that may allow or do allow injustice to continue. We must educate ourselves about these systems and assess their importance in bringing about change. In this article, I am exploring the legal term and system of qualified immunity.
Qualified immunity is a legal doctrine created by the Supreme Court to protect law enforcement officials from frivolous lawsuits. Cornell Law School’s Legal Information Institute (LII) presents a timeline of the doctrine’s development through case law. LII begins its list with Supreme Court case Harlow v. Fitzgerald in 1982. This ruling stated that government officials are entitled to this immunity so long as their actions do not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” However, the NYT Editorial Board points to an earlier origin of the doctrine in 1967 Supreme Court case Pierson v. Ray, in which the court ruled that police officers should not be held legally liable when enforcing the law “in good faith and with probable cause.” In other words, qualified immunity is a protection for government officials created by the Supreme Court that has continued to be expanded on and developed by the Court across many years of case law.
According to the LII, one key place where the Supreme Court expanded on this doctrine is in the 2001 ruling Saucier v. Katz, which established a two-part test for whether the government official in question is entitled to qualified immunity. The court must ask:
- “Whether a constitutional right would have been violated on the facts alleged”
- “Whether the right was clearly established”
If the answer to the first question is ‘no,’ then the official is granted qualified immunity. If the answer is ‘yes,’ then the court considers the second question. If this answer is ‘no,’ then the official is granted qualified immunity. In other words, in order for a plaintiff to succeed in bringing a government official or police officer to trial for civil damages, the court must rule that the answer to both of these questions are ‘yes.’ (Reuters provides a visualization of this process in 252 cases from 2015-2019.)
The NYT Editorial Board argues that it’s this need to prove that the right was “clearly established” that creates such a high burden for plaintiffs to meet in attempted lawsuits against the police. In order for the violation of rights to be “clearly established” the plaintiff must point to clear case law that proves this. However, since no two cases are exactly alike, courts can continue to use this clause as a way to easily dismiss police misconduct cases. As less cases succeed in proving that police officers should not be granted qualified immunity, it can become harder and harder for plaintiffs to find prior cases that support their individual case.
In 2019, Reuters conducted an extensive study of the qualified immunity doctrine. They found that in 2005-2007 the courts favored the police in 44 percent of cases and the plaintiff in 56 percent of cases and that in 2017-2019, the courts favored the police in 57 percent of cases and the plaintiff in 43 percent of cases. The report states:
This 50-year-old creation of the U.S. Supreme Court is meant to protect government employees from frivolous litigation. In recent years, however, it has become a highly effective shield in thousands of lawsuits seeking to hold cops accountable when they are accused of using excessive force.
Reuters, “Shielded”
This doctrine is especially relevant now in light of the Supreme Court order on Monday, June 15, in which the court declined to hear any of the growing number of cases seeking that the doctrine be either removed or narrowed.
These cries for reform come from across the aisle and the coalition of justice advocates in support of change come armed with a number of defenses such that “the doctrine is improperly and inconsistently applied; that it has no basis in civil rights law; and that its purported benefits…do not justify trampling civil rights,” according to Reuters.
As a result of SCOTUS’ decision to decline to hear these cases, many have turned to Congress as the new arena to remedy the harm caused by the qualified immunity doctrine. Just yesterday morning, June 17, the Atlantic published an opinion article entitled “Congress Is Going to Have to Repeal Qualified Immunity,” by public-policy consultant Eric Schnurer. In it, Schnurer advocates that:
“This ought to be a bipartisan cause—in fact, tri-partisan, as the proposed Ending Qualified Immunity Act is sponsored by not just a long list of liberal Democrats, but also the Republican turned Libertarian Justin Amash, from Michigan, and, most recently representative Tom McClintock, a California Republican.”
Schnurer labels qualified immunity “the biggest littlest-known barrier to rectifying constitutional violations in the justice system,” and claims that it fits squarely into conservative philosophy that advocates for protection from the overreach over all government officials and discourages “legislating from the bench.” He speaks from his own experiences as legal counsel for high-level government officials and as a civil rights lawyer to explain just how challenging it can be for plaintiffs to overcome qualified immunity cases in practice. Additionally, he explains that the legal reasoning for the doctrine—fear that law enforcement officers have to spend important time off the job and defending themselves against frivolous lawsuits—is largely diminished by the increase in video footage. “Very simply, these offenses are real, documentable, and easily dealt with—if the government is acting in good faith,” Schnurer says.
The Ending Qualified Immunity Act was introduced by representatives Ayanna Pressley (D-Massachusetts) and Justin Amash (L-Michigan) and would amend and clarify Congress’s original intent in Section 1983, the federal statute that allows people to seek civil remedy from government officials for civil rights violations. The amendment would explicitly state that the doctrine invented by SCOTUS does not protect police officers in acts of brutality or violation of civil rights from civil liability.
Daniel Epps, an associate professor of law at Washington University, warns against the effectiveness of such reform, citing that this Act will likely not change police actions nor the courts’ narrow interpretation of constitutional rights against police violence. However, it does seem that the abolition of this doctrine is one step among many towards what Eric Schurner paints as a world where police are held to the same standard of conduct as the rest of us “normal human beings”.
Want to learn more about qualified immunity? Don’t let your learning stop here. Many news and opinion pieces are being published by major news outlets in relation to the recent bill with more extensive information than I can provide here. If you decide you want to support the movement to end qualified immunity, consider checking if your local representatives are some of the more than 50 members of Congress that have signed on as co-sponsors to the Ending Qualified Immunity Act. If you are interested in calling or emailing your representative urging them to do so, the Libertarian Party of Georgia has created a call/email template.
- How Can Human-Centered Design Lead to Greater Social Impact? - January 27, 2021
- How is Transformative Justice Different from Restorative Justice? - December 30, 2020
- Expungement and Sealing: What Are They and Why Should States Expand These Forms of Record Relief? - November 13, 2020