Abolish qualified immunity.
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Happy Monday,
It's been 115 days since Breonna Taylor was killed and she still hasn't seen justice (Vox). I think about this often, especially as we watch conversations swirl around qualified immunity and how we hold police officers accountable when our systems fail to do it for us. Today's #antiracismdaily takes us through history to understand how qualified immunity prevents so many victims from finding even a semblance of justice in an unjust world.
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Nicole
TAKE ACTION
U.S. Readers:
Contact your local senator encouraging them to act on abolishing qualified immunity.
International Readers:
Consider how your country / region holds state and local officials accountable. How does this vary from the U.S.? How does it impact your local law enforcement?
GET EDUCATED
What is qualified immunity?
As communities work to reform and abolish law enforcement across the country, qualified immunity is under heavy scrutiny. Over the past few weeks, a bill to end qualified immunity has been passed by the House (as part of the Justice in Policing Act), but is currently stalled in the Senate (Vox). Last Wednesday, July 1, liberal senators introduced the Ending Qualified Immunity Act (CNN) to add as a companion piece to the initial legislation.
Some police act like the law doesn’t apply to them. And because of qualified immunity, they're kind of right. Qualified immunity means that government officials are shielded from charges that they violated constitutional and civil rights – unless the victims of those violations can show that the rights were “clearly established law". This means that in order to charge the perpetrator, the victim must first find an exact same example of the case at hand that's already been ruled illegal or unconstitutional to establish its legitimacy (USA Today).
Still confused? Here's a TikTok video that demonstrates it more simply. Bless (some) TikTok creators.
Here's a real-life example. In February, the 5th Circuit U.S. Court of Appeals held that a prison guard in Texas who pepper-sprayed an inmate in his locked cell “for no reason” did not violate clearly established law because similar cited cases involved guards who had hit and tased inmates "for no reason", rather than pepper-spraying them (USA Today). The full report notes that if the victim was punched or hit by a baton "for no reason" the assault would violate clearly established law (PDF).
Another example is the story of Malaika Brooks, a black woman who was seven months pregnant and pulled over for speeding while dropping her 11-year-old off at school. She refused to sign the speeding ticket (mistakenly thinking it was an acknowledgment of guilt). She was then tased three times, dragged into the street, pressed facedown into the ground, and cuffed (NYTimes). Although the judges saw that her constitutional rights were violated, they dismissed the case, arguing that "no precedent had 'clearly established' that tasing a woman in Ms. Brooks’s circumstances was unconstitutional at the time" (NYTimes).
This creates a paradoxical situation: how can you hold law enforcement accountable if their specific violations haven't been held accountable in the past? Justices are allowed to interpret "clearly established law" as specifically as they choose. And what's worse – the more egregious the violation, the more likely it doesn't fit neatly into a previous case. It's no surprise that, according to George F. Will, the Supreme Court, applying its “clearly established law” doctrine, has denied immunity only twice in its past 30 cases (Washington Post). There are dozens and dozens of examples just like the ones above, preventing citizens from holding police accountable for harm.
“Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose”.
Judge Don Willett, U.S. Circuit Judge of the U.S. Court of Appeals for the Fifth Circuit, in The New Republic
So, how did we get here? Qualified immunity is buried in Section 1983 (named for its number in U.S. code, not the year), a provision from the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. After the Civil War, the federal government was focused on re-integrating the South but faced violent resistance from white supremacists, most notably the Klan, who was waging a war of domestic terrorism by "killing black Americans and white Republicans, burning down their homes and churches, and intimidating local communities into accepting white-supremacist rule" (The New Republic). Sound familiar?
The government had to act, so it passed the Ku Klux Klan Act, granting it more power to intervene against violations of the 14th Amendment (house.gov). Within it, Section 1983 gave private citizens the power to sue state and local officials who were violating federal constitutional rights – building more personal accountability into the work (The New Republic). Although power granted by the Ku Klux Klan Act was removed by the Supreme Court after the Reconstruction Act, Section 1983 remained, dormant until 1961.
This is when James Monroe, a Black man, and his family were pulled from their beds late one night and assaulted by thirteen police officers with no warrant (sound familiar)? Monroe was then held for interrogation for 10 hours without access to a lawyer or being charged with a crime. In the case Monroe v Pape, the Supreme Court ruled that they had the right to hold the police officers accountable, using the terms of Section 1983 as reference. This grounded the provision as a part of holding law enforcement accountable in today's rhetoric (The New Republic).
But a shift in terminology has made this more difficult to execute. Initially, the rule was written so that citizens could hold officials liable if their actions were "under color of state law," meaning they were executed by state or local officials. But the Supreme Court changed this in 1982, revising to ensure that government officials were entitled to “qualified immunity” from such lawsuits unless their actions violated a “clearly established law” (The New Republic), the terminology that still stands today. Despite the flood of renewed interest this past June, the Supreme Court declined to revisit this topic, leaving it up to the legislative branch to figure it out (CNN).
It's important to note that abolishing qualified immunity won't solve all problems in law enforcement – but if you've been reading this newsletter long enough, you might have already realized that! These issues never exist in isolation, and one change can't dismantle an entirely inequitable system. But abolishing qualified immunity sends a message that many more police officers that violate the Constitution will be held accountable. It also holds anyone with government power to the same standards as normal human beings. And shouldn’t we all be held to the same levels of accountability?
“Qualified immunity shields police from accountability, impedes true justice, and undermines the constitutional rights of every person in this country. There can be no justice without healing and accountability, and there can be no true accountability with qualified immunity. It’s past time to end qualified immunity, and that’s exactly what this bill does”.
Ayanna Pressley, U.S. Representative for Massachusetts's 7th Congressional District, on her website.
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