Qualified Immunity: Police Immunity From Prosecution.
New York Times. By Spencer Bokat-Lindell
In the middle of the night on March 13, police officers executing a drug search warrant in Louisville, Ky., used a battering ram to crash into the apartment of Breonna Taylor, a 26-year-old black woman, and, after a brief confrontation with her boyfriend, who believed someone was trying to break into their home, shot her at least eight times, killing her on the spot. (No drugs were found.)
Taylor was an emergency room technician and had spent the last days of her life helping coronavirus patients at two local hospitals. “She loved to help people and she loved her family,” her mother said. “She didn’t deserve what they did to her.”
In April, Taylor’s mother filed a wrongful-death lawsuit. But to get justice, her lawyers say, they will have to overcome an obstacle known as “qualified immunity,” a legal doctrine that, in the words of Justice Sonia Sotomayor of the Supreme Court, has become “an absolute shield for law enforcement officers.”
It’s a phrase you’re likely to hear a lot more in the coming days. The Supreme Court is expected to announce soon whether it will reconsider the doctrine, and Justin Amash, a conservative congressman from Michigan, plans to introduce a bill this week to eliminate it. Here’s what people are saying about the protection and why it lies at the heart of the protests now roiling the nation.
What is qualified immunity?
Qualified immunity dates back to 1967, the same year a Miami police chief coined the phrase “when the looting starts, the shooting starts” while cracking down on black neighborhoods. Two states over, in Mississippi, the police had arrested a group of black clergymen for peacefully using a whites-only waiting room in a bus terminal. When the clergymen tried to sue the police for violating their civil rights, a court ruled that officers shouldn’t face legal liability for enforcing the law “in good faith and with probable cause.”
That was already a high standard for plaintiffs to meet, The Times editorial board writes. But in 2009, the Supreme Court ruled that courts didn’t even need to consider whether a cop used excessive force unless another court had already “clearly established” that the same conduct in the same context in a previous case was unlawful and not worthy of immunity.
As Amir H. Ali and Emily Clark explain at The Appeal, a criminal justice journalism website, qualified immunity has effectively created a Catch-22 paradox in constitutional law: Where a precedent doesn’t exist, a court can punt on the question of whether a cop broke the law, which in turn ensures that a precedent doesn’t get set.
Important to note: Qualified immunity pertains only to civil suits. Convicting officers on criminal charges, such as those Derek Chauvin now faces in the killing of George Floyd, is exceedingly rare: Between 2005 and 2019, only three officers were found guilty of murder and saw their convictions stand.
What does qualified immunity look like?
In practice, qualified immunity makes it difficult for people to bring suits against police officers, to say nothing of winning them. Consider the case of Malaika Brooks:
In 2004, Brooks, a black woman who was seven months pregnant, was pulled over by the Seattle police for speeding while driving her 11-year-old son to school.
Brooks believed she had been wrongly stopped and refused to sign the ticket, thinking, mistakenly, that her signature would be an admission of guilt.
The officers then threatened to throw her in jail, twisted her arm behind her back and tased her three times — first on her thigh, then in an arm and then in her neck — before dragging her into the street, laying her face down and cuffing her.
Brooks sued the officers, and in 2011 a federal appeals court argued that a reasonable person could conclude that the officers had indeed violated her constitutional rights. But those same judges dismissed her case, arguing that no precedent had “clearly established” that tasing a woman in Brooks’s circumstances was unconstitutional at the time.
Brooks’s story is far from unique: An investigation by Reuters found that in the past 15 years, the courts have shown an increasing tendency to grant police officers immunity in excessive-force cases. The Supreme Court, for example, has denied immunity only twice in its 30 most recent relevant cases, according to George Will.
People all across the political spectrum, actually. Justice Sotomayor is arguably the Supreme Court’s most left-leaning member, but her concern about police impunity is shared by one of the court’s most conservative members, Justice Clarence Thomas.
From the right: In The Wall Street Journal, Robert McNamara, a member of the Federalist Society, raises the case of Shaniz West, an Idaho woman who gave her house keys to the police to search for her ex-boyfriend, who was wanted on firearms charges. He wasn’t inside, but the police bombarded the house with grenades and shotguns until it was uninhabitable, leaving West homeless. West sued the officers for violating her Fourth Amendment rights, but her claim was rejected because of qualified immunity.
“Nobody seriously believes that consent to enter a home is permission to lob grenades into it. But no court has ever decided the question, because as far as I can tell, this is the first time anybody has made the argument,” McNamara writes. “Since no court has considered it, qualified immunity means West loses. As long as an official’s conduct is uniquely outrageous, it’s impossible to hold him liable for it.”
From the left: In the New Republic, Matt Ford notes the case of three California police officers who were accused of seizing more than $275,000 in rare coins from a person’s house while reporting that they had seized only $50,000. The federal Court of Appeals for the Ninth Circuit said the alleged theft of $225,000 was “deeply disturbing,” but it dismissed the suit anyway because it said no precedent had ever established that officers can’t steal on the job.
“This is what America is: a place that eagerly gives out get-out-of-jail-free cards to the powerful, while meting out harsh punishment to everyone else,” writes David Sirota in Jacobin. “The question now is whether we can imagine a society that is different? Can we imagine a legal system that punishes police violence and bigotry, repeals doctrines like ‘qualified immunity,’ and protects the right to peaceably protest?”
What reforming qualified immunity would — and wouldn’t — do
One of the few arguments against reforming qualified immunity is that it would open the door to a deluge of frivolous suits, which would chill officer behavior on the street and discourage people from becoming cops.
But these concerns are almost certainly unfounded, argues Joanna C. Schwartz, a professor at the University of California, Los Angeles, School of Law and an expert in police accountability. Why? For one thing, qualified immunity is only one of many barriers to success in civil rights suits. What’s more, police officers are virtually always indemnified, meaning that even when they are found liable for damages, taxpayers cover 99.98 percent of the bill.
But for these same reasons, eliminating qualified immunity will never be a silver bullet for police brutality. “Although eliminating qualified immunity would increase access to the courts, clarity about the law, and transparency about the conduct of government officials,” Schwartz says, “it would not fundamentally shift dynamics that make it difficult for plaintiffs to redress constitutional violations and deter official misconduct.”
To see what Schwartz means, consider the case of the Minneapolis officer Tou Thao: In 2014, Thao was accused of brutalizing a black man without probable cause, leaving him broken-toothed and traumatized. In 2017, Thao settled that suit out of court for $25,000, which the city of Minneapolis paid in full. And last Monday, Thao stood on the Minneapolis street where Derek Chauvin drove his weight into George Floyd’s neck, watching, for nearly nine minutes, until the life left Floyd’s body. As of this writing, a job is the only thing Thao has lost.
New York Times
Me: Usually a Law stays in place until the day it is rescinded and replaced with a new Law, so the charges that Derek Chauvin now faces in the killing of George Floyd, would come under the existing Qualified Immunity: Police Immunity From Prosecution and the new Law, once it is in place cannot be backdated to cover whatever occurred previous to the date of the new Law which can only be applied from that date, forwards.