The Doctrine that Shields Police Brutality
What you should know about Qualified Immunity
In the wake of the nationwide protests in the name of George Floyd and other victims of police brutality, the message remains clear: what the people want is justice. Given America’s history of how volatile and explosive the authorities can be against civil unrest, especially involving the police force, that might the greatest challenge yet.
Minneapolis police officer Chauvin put his knee on Floyd’s back, who was already arrested belly to the ground, for more than eight minutes while three other officers watched. If the officers had been, say, for example, gang members, Crips, Bloods, Latin Kings, or Furries instead, all would have been accused of murder on the spot without hesitation even if there was only one knee on his back. They’d be culpable.
LA laws in the 1980s sought to take down these gangs and their reach extended from rolling with the crew in the same lowrider to even living on the same block, no matter if you were involved or not because they knew it wasn’t an issue of a “couple of bad apples,” but the whole of it was contaminated.
If you pluck a weed, two more sprout out in its place, they’d tell you. Therefore, these police tactics were meant to raze it all in chemicals with the intention of doing as much damage and no consideration of collateral. But I bet you that police officers in the 80’s didn’t think this would backfire and put them on the cross-hair for misconduct and brutality. Officers Kueng, Lane, and Thao now all face charges, complicit in Floyd’s death. I was surprised they were arrested the same day Chauvin was, but the police force has an ace up their sleeve, one that shields them from lawsuits and allows them to act with impunity: qualified immunity.
According to Law Information Institute at Cornell Law School, qualified immunity, a doctrine created by judges, “protects a government official from lawsuits alleging that the official violated a plaintiff’s right, only allowing suits where officials violated a “clearly established” statutory or constitutional right.” The doctrine is meant to be a “breathing room” for split-second decision making in which officers don’t have to worry about the financial litigation of a lawsuit because of their actions.
CBS News reported last week that qualified immunity had “come under heightened scrutiny in recent years” due to lower courts having used this doctrine to shield police misconduct and even brutality and that “makes it more difficult for victims to hold law enforcement accountable for use of excessive force.”
Qualified Immunity protects government officials from lawsuits…
Johnny Leija, a patient recovering from pneumonia in Oklahoma, was wandering the hospital halls, dazed and dehydrated, when police officers showed up, shocked him with a stun gun repeatedly, and pinned him to the ground until his heart gave out. He was 34. David Becker, during a routine traffic stop in Utah, was thrown to the ground resulting in brain damage. Lazlo Lattis was shot dead in Michigan while trying to reverse away from the police. Gerrit Vos, who appeared to be going through a mental health crisis, was shot dead inside a convenience store in California. In all these cases, the officers involved were granted qualified immunity.
In a Reuters investigation, journalist Andrew Chung said that despite proof, such as police issued body cameras and bystander cellphone videos recording the incidents, qualified immunity is “making it easier for officers to kill or injure with impunity.” But journalists aren’t the only ones taking note of this. At the Supreme Court, two Justices feel that the doctrine should be revisited.
Liberal Justice Sonia Sotomayor has expressed that her colleagues, at the Supreme and lower courts, have used the doctrine to excuse police misconduct. She says that the Supreme Court “rarely intervenes” in lower courts business and that this practice has transformed qualified immunity into an “absolute shield for law enforcement officers.”
On the other side of the spectrum, Conservative Justice Clarence Thomas has also criticized it, stating that he has “doubts about the 1983 Qualified Immunity doctrine” as it “appears to stray from statutory text” and urges the court to revisit it.
“…Qualified Immunity is making it easier for officers to kill or injure with impunity…”
What should be revisited is the way an incident is determined to be qualified immunity material. You would think it’s a very elaborate, rigorous process. Not the case. It's a two-part test that consists of two measly questions: 1) if the officers did in fact violate the constitutional rights of the individual and 2) if the officer had known that their conduct was illegal. That’s it. It’s harder to apply for unemployment benefits and get approved then it is for officers to get granted qualified immunity, and there’s a hell of a lot more on the line.
And I’m not just saying this based on the few cases that I have mentioned above. In the investigation posted in May, Reuters found that “since 2005 courts have shown an increasing tendency to grant immunity in excessive force,” and starting from 2015, more than half of them were granted.
Besides the data compiled from hundreds of cases expanding from more than a decade, there are three main takeaways that I gathered from the that investigation.
Number 1, and the most obvious, is that appeal courts are granting qualified immunity to police more often than they used to. “You get the impression that the officers are always supposed to win and the plaintiffs are supposed to lose,” says University of Chicago Law professor William Baude.
Number 2, courts are changing how they navigate the very simple two-part qualified immunity test. Since 2009, Supreme courts have allowed lower courts to skip the first part of the test (if the officers knew they were violating the individual’s rights) and go straight to the second part. Cases that shortcut through this process are almost always granted immunity.
And 3, Reuters found that from 2017–2019, 57% of the cases were granted immunity. A steep increase from 2005–2007 which was 44%. Justice Sonia Sotomayor wrote in 2018 that the courts favoring the police force tells cops that they can “shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Critics have dubbed this doctrine a “catch-22”, a paradoxical situation that you can’t escape, essentially: “Heads the police win. Tails you lose.”
