![2[1].jpg](https://static.wixstatic.com/media/5abadf_f310244424a443b29215dadb17bba49b~mv2.jpg/v1/crop/x_5,y_0,w_1069,h_1080/fill/w_101,h_102,al_c,q_80,usm_0.66_1.00_0.01,enc_avif,quality_auto/2%5B1%5D.jpg)
Author: Niki Saberi Oskoui
Over the past few weeks, protests have erupted across the world calling for justice against police brutality in the US and in support of the Black Lives Matter movement. Worldwide, accountability has been demanded for the unjust killings of George Floyd, Breonna Taylor and many others. However, the little-known doctrine of qualified immunity provides legal protection for officers, making it almost impossible to sue the police in the US.
150 years ago, in the wake of the Civil War, the Civil Rights Act of 1871 was passed to give individuals the right to sue public officials who violate constitutional rights. This statute, which is now known as Section 1893, affirms that if a public official violates an individual’s right through police brutality, unlawful arrest or illegal search, a lawsuit may be filed to hold the officer financially accountable for the conduct.
However, this unequivocal right can be blocked by the obscure doctrine of qualified immunity. The term dates back to 1967 (ironically, the same year a Miami police officer coined the term, ‘when the looting starts, the shooting starts’), and aims to protect the government from frivolous litigation. This includes bringing forward a case with no legal merit and no chance of success. Such an action may be brought in bad faith or for the purpose of harassing the other party. In the eyes of the law, officers should not face any legal liability when enforcing the law ‘in good faith, and with probable cause’. Instead, it allows police brutality to go unpunished and denies victims their constitutional rights which is far from what Congress sought to achieve in the Civil Rights Act. As stated by Justice Sonia Sotomayor, the doctrine encourages a ‘shoot first, think later’ approach. The badge has now become a get-out-of-jail-free card.
A virtually unlimited protection
The case of Harlow v Fitzgerald set out a two-limb test for qualified immunity. In the first stage of the test, the court will assess the existence of excessive force. However, courts have increasingly chosen the option to skip this stage which was granted in 2009. When courts decline to establish excessive force, it avoids setting a clear established precedent for future cases, creating a closed loop and thus allowing the same conduct to repeatedly go unpunished.
The second part of the test creates a larger barrier to justice. The court must determine whether the unlawful conduct is ‘clearly established’. This obligates the court to look back at previously successful cases which involve the same ‘specific context’. If none exists, the official is immune. Whether the official’s actions are unconstitutional or malicious is irrelevant. In reality, every crime that occurs is different. One minor difference allows officers to escape liability. In practice, justice becomes unattainable to victims, deterring victims from bringing claims forward and allowing police officers to prevail virtually every time. As stated by the Institute of Justice, ‘government officials can get away with violating your rights as long as they violate them in a way no one has ever thought of before’. Examples of differences used to provide immunity include the distance between the victim and officers and the location of the respective incidents. Between 2017 and 2019, 57% of excessive forces favoured the police. According to journalist George Will, the Supreme Court has denied immunity only twice in its 30 most recent relevant cases.
“government officials can get away with violating your rights as long as they violate them in a way that no one has ever thought of before”
In a technological era, bystander cell phone videos and police body cameras have shed a national spotlight on extreme police tactics. Surely, such evidence would lead to accountability?
Yet, a Reuters investigation found that since 2005, the courts have shown an increasing tendency to grant immunity in excessive force cases. Reuters found among the cases it analysed more than 3 dozen in which qualified immunity protected officers whose actions had been deemed unlawful. Under the careful stewardship of the Supreme Court, a culture of violence and abuse has been devised, creating an endless loop of police brutality.
Continuous protection from the Supreme Court
Qualified immunity has attracted criticism from legal scholars, politicians, judges (both liberal and conservative) and various civil rights groups. However, the Supreme Court retains an iron grip on the doctrine by continuously favouring police officials. Over the past 15 years, the High Court has taken up 12 appeals of qualified immunity decisions from the police, but only 3 from the victims of the crime. Complainants have asked the court to review nearly as many cases as the police. The court’s acceptance for appeals seeking immunity was 3 times its average acceptance below the court’s average acceptance rate for all appeals. Sotomayor states that, “we have not resisted to summarily reverse courts for wrongly denying officers the protection of qualified immunity”. She affirms that, “we rarely intervene where courts wrongly afford officers the benefit of qualified immunity”. This statement was in response to a decision not to hear an appeal brought by Ricardo Salazar-Limon who was unarmed when a Houston police officer shot him in the back, leaving him paralyzed. It is evident that the Supreme Court has built qualified immunity into an insurmountable defence by intervening in cases mostly to favour the police.
The Supreme Court continuously justifies this favouritism. Its first justification argues that the police force would not be able to perform their duties effectively without legal protection as the police need latitude to make split-second decisions. However, various studies have proven this to be incorrect. A psychological study published by the Notre Dame Law Review concluded that law enforcement officers do not think about the threat of being sued in their duties. The second reason offered is even more irrational by stating that qualified immunity protects police officers from being bankrupted by civil lawsuits. This blatantly ignores the reality that police costs are never paid by the individual. A NYU Law Review study of more than 80 states and local law enforcement agencies found that in instances of misconduct, individual officers almost never pay such costs: they are always paid by police insurance or the police union. If this is the case, a lawsuit would affect the institution as a whole, forcing them to rethink their training and use of excessive force.
However, justice for victims may be nigh. Last week Justin Amash, a conservative congressman from Michigan, introduced the End Qualified Immunity Act which would ‘eliminate a procedural roadblock for victims that thwarts them from ‘obtaining damages for having their rights violated’. This would allow victims to access justice by eliminating the strict two-stage test. The Supreme Court will announce whether it will reconsider the doctrine. If it does not, lack of accountability will continue to rule.
Police reform cannot be achieved without the abolition of the doctrine of qualified immunity. Police officers and government officials will continue to be treated as above the law. Because, they are.
Comments