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.
