Qualified immunity has become a big obstacle to good police/community relations

A long with chokeholds, no-knock entries and other violent police tactics, there is growing consensus among both protesters and groups across the political spectrum that “qualified immunity” must be ended or rethought. As it stands, qualified immunity protects local law enforcement from being sued and prevents citizens whose constitutional rights have been violated by law enforcement from having their day in court. 

Ironically, the idea that public officials can be sued for violating the rights of citizens began with the Civil Rights Act, passed in 1871 to protect recently freed slaves from the Ku Klux Klan. Congress’s wording in the Act was clear: Every state official who causes a “deprivation of any rights” guaranteed by the Constitution and laws “shall be liable to the party injured.” Although Klan violence didn’t end, hundreds of Klansmen were fined or imprisoned for violence under the Act. 

Nearly a century later, in 1967, the Supreme Court introduced “qualified immunity” for those officials who could show they had acted in good faith.  Although intended as a modest exception to prevent frivolous lawsuits and financial liability, the case that had risen to the highest Court was prompted by black clergymen who had sued for a violation of their civil rights after being arrested for peacefully using a whites-only waiting room in a bus terminal. Thus, qualified immunity resulting from the “good faith” of an official became a new obstacle to those pushing for racial equality.

Qualified immunity was greatly expanded by the U.S. Supreme Court in a very different legal situation. A suit against Nixon and two aides had been filed by a whistleblower in the U.S. Air Force who had been fired after uncovering $2 billion in concealed cost overruns. Deciding that the subjective state of an official was too difficult to determine, in 1982, in Harlow v. Fitzgerald the Supreme Court eliminated the “good faith” argument. Instead, government officials would be shielded from liability for civil damages insofar as their conduct did not violate any clearly established statutory or constitutional rights knowable by a reasonable person.  

In 2009, the Supreme Court upped the ante, ruling that lower courts didn’t even need to consider whether a cop had used excessive force unless the same conduct in the same context had been shown in a previous case to be unlawful and unworthy of immunity. What this meant was that victims of brutality by police officers had to find an identical case where police officers had been held accountable. Since two cases are rarely exactly the same, qualified immunity has enabled public officials, and especially law enforcement, to get away with egregious conduct. At the same time it has created a legal Catch-22: Where a precedent doesn’t exist, the question of whether the police have broken a law remains undecided, which in turn ensures that the precedent doesn’t get set.

Over the past 15 years, the doctrine of qualified immunity has been increasingly applied to cases involving police use of excessive or deadly force. Not surprisingly, victims have generally not received their day in court. Moreover, of the 30 most relevant cases traveling up to the highest Court, the Supreme Court has only twice denied immunity. 

Some argue that reforming qualified immunity would lead to a surge in suits against law enforcement, with the police bankrupted by law suits, or that it would inhibit the police in performing their duty. But taxpayers, through their police departments, not individual police, pay for such lawsuits. Moreover, so long as qualified immunity reinforces the cycle of violence between police and minority communities, law enforcement will be deprived of the public trust they need to do their jobs safely and effectively.    

Prompted by weeks of national and international protest, both the Democrats and the Republicans have offered police reform bills. The Republican bill, already voted down, would have increased reporting on the use of force and no-knock warrants, provided incentives for chokehold bans and made lynching a federal crime, but left qualified immunity untouched. The Democratic bill, still to be voted on as of this writing, would ban both chokeholds and no-knock warrants, and would make police more accountable by restricting the use of qualified immunity. 

The question is whether, amidst our current legislative rancor, Congress will manage to change a law that licensed police to commit brutality and violence, while rendering citizens, particularly from minority communities, powerless to defend their own rights. 

 

Carol Ascher, who lives in Sharon, has published seven books of fiction and nonfiction, as well as many essays and stories.  She is trained as a spiritual director.

The views expressed here are not necessarily those of The Lakeville Journal and The Journal does not support or oppose candidates for public office.

Latest News

Pirates go back-to-back as league champs

The Canaan Pirates pose as champions after defending the Northwest Connecticut District 6 Majors Little League title.

Photo by Riley Klein

THOMASTON The Canaan Pirates are champions once more.

In the Northwest Connecticut District 6 Majors Little League title game Friday, June 13, the Pirates defeated Thomaston JRC Transportation by a score of 6-2.

Keep ReadingShow less
Red Sox end season with comeback win

NORTH CANAAN — The Canaan Red Sox ended the season with a thrilling 14-13 win over the Tri-Town Phillies Thursday, June 12.

Canaan trailed for most of the game but kept it close. Ultimately, the Red Sox secured the victory with a final-inning comeback in front of the home crowd at Steve Blass Field.

Keep ReadingShow less
State Rep. Horn injured in running accident

State Rep. Maria Horn (D-64) was treated for her injuries at Sharon Hospital.

Photo by John Coston

The day after concluding what has been described as a grueling legislative session, State Rep. Maria Horn (D-64) had a running accident, leaving her with a broken pelvis and collarbone among other more minor bruises and abrasions. Despite the injuries, she is in good spirits and recuperating at home, eager to get back on her feet.

Horn said after spending weeks in the assembly hall, she was eager to get some outdoor exercise in, but perhaps pushed a little too hard too soon. She said she was excited to get a run in on the morning of Friday, June 6, but was still exhausted from her time in Hartford and in the final stretch of recovering from a meniscus repair surgery in December.

Keep ReadingShow less
Walk-off win sends Pirates to championship

Milo Ellison sends a fly ball to left field, bringing home Brody Ohler and Sam Hahn in a walk-off win for the Canaan Pirates June 11.

Photo by Riley Klein

NORTH CANAAN — The Canaan Pirates advanced to the league championship after a comeback victory over the Tri-Town Red Sox Wednesday, June 11.

Down 3-2 with two outs and two on in the bottom of the 6th inning, "Mighty" Milo Ellison stepped up to the plate and launched a fly ball deep to left field. The single brought home Brody Ohler and Sam Hahn for a walk-off Pirates win.

Keep ReadingShow less