Abolish qualified immunity.

Nicole Cardoza
Written By Nicole Cardoza

Happy Wednesday and welcome back to the Anti-Racism Daily. Our previous two newsletters both depict the atrocities of our criminal justice system, emphasizing that abolition is the only way forward. Qualified immunity is part of that narrative, too, and garnering more attention this month. Today I thought it would be wise to revisit its history and context in current events. 

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By Nicole Cardoza (she/her)

The latest series of body camera videos released in conjunction to police brutality have reignited conversations about the role of qualified immunity in holding law enforcement accountable. 
 

Some members of law enforcement act like the law don’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 violate constitutional and civil rights – unless the victims can prove that these 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 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 TikTok creators.
 

Here's a real-life example. In February 2020, 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 we starting holding 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.

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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 they faced violent resistance from the Klan, who waged 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). 
 

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 ability to sue state and local officials who were violating federal constitutional rights – building more personal accountability into the work (The New Republic). Although the Supreme Court removed power granted by the Ku Klux Klan Act after the Reconstruction Act, Section 1983 remained, dormant until 1961.
 

This was 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 without being charged a crime, or access to a lawyer, for 10 hours. 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 challenging to execute. In 1982, the Supreme Court revised Section 1983 to ensure that government officials were entitled to “qualified immunity” from such lawsuits unless their actions violated a “clearly established law” (The New Republic). 

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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.

A wide range of organizations advocate for ending qualified immunity, including the ACLU, the Electronic Frontier Foundation, the Movement for Black Lives and the Institute for Justice. The George Floyd Justice in Policing Act, which recently passed in the House, includes ending qualified immunity for law enforcement (although many Black-led organizations oppose most of the other aspects of this legislation). To bolster it, the bill entitled “Ending Qualified Immunity Act” was re-introduced to the House of Representatives, which would end qualified immunity not just for law enforcement, but all government officials (Congresswoman Pressley). And Some states are also ending laws that act similarly to qualified immunity on the state level (The New Republic). Ending qualified immunity is a necessary step towards abolition.

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Nicole Cardoza
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