It follows the reintroduction of the Ending Qualified Immunity Act three years after it was initially introduced following the murder of George Floyd by a Minneapolis police officer (The Hill). For decades, qualified immunity has been the go-to legal defense protecting police from facing accountability.
Some police act like the law doesn’t apply to them. And because of qualified immunity, they’re kind of right. Qualified immunity means that government officials are shielded from civil lawsuits where they violated constitutional and civil rights—unless the victims (or their family) can show that conduct was unlawful and that the officer knew they were violating “clearly established” law. This means that for an officer to be held responsible for misconduct, including police brutality and excessive force, the victim must find a matching case that’s been ruled illegal or unconstitutional to establish its legitimacy (USA Today). Even if the police action is unlawful, they will not be held liable without that precedent case. Still confused? Here’s a TikTok video that demonstrates it more simply.
• Contact your local senator encouraging them to act on abolishing qualified immunity.
• Learn about local legislation and policy reforms to defund the police in your community and how you can support them.
• Consider how your country/region holds state and local officials accountable. How does this vary from the U.S.? How does it impact your local law enforcement?
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,” instead of pepper-spraying them (USA Today). The full report notes that if he were punched or hit by a baton “for no reason,” the assault would violate clearly established law (PDF). The Supreme Court would later vacate this decision.
Another example is the story of Malaika Brooks, a Black woman who was seven months pregnant and pulled over for speeding while dropping her child at school. Refusing to sign the speeding ticket (mistakenly thinking it was an acknowledgment of guilt), police tased her three times, dragged her into the street, pressed her facedown into the ground, and cuffed her (NYTimes). Although the court found the officers’ use of force “unreasonable” and “excessive,” they dismissed the case, arguing that no precedent had clearly established that tasing a woman in Ms. Brooks’ circumstances was unconstitutional (Seattle Times).
These are just two of numerous instances where folks were prevented from holding police accountable for harm.
This creates a paradoxical situation: how can you hold law enforcement accountable if their specific violations haven’t been held accountable in the past? Justices can 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. Unsurprisingly, as of 2020, the Supreme Court has denied immunity only twice in its past 30 cases (Washington Post). And a 2020 Reuters analysis found that following a 2009 Supreme Court decision permitting lower courts to only consider whether the conduct is unlawful based on established precedent (bypassing part 1), courts awarded immunity to cops more often and made it harder for victims to seek justice (Politico).
So, how did we get here? Qualified immunity is buried in a provision under the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. After the Civil War, the federal government was focused on reintegrating the South but faced violent resistance from white supremacists, most notably the Klan, who were “killing black Americans and white Republicans, burning down their homes and churches, and intimidating local communities into accepting white-supremacist rule” (The New Republic).
In response, the government 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 power to sue state and local officials violating federal constitutional rights (The New Republic). It was meant to “give a remedy to parties deprived of constitutional rights, privileges, and immunities by an official’s abuse of his position” (Library of Congress/ Monroe v. Pape). However, the Supreme Court would later weaken this protection by the late 1960s, including introducing qualified immunity in the 1967 case, Pierson v. Ray.
“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”.
It’s important to note that abolishing qualified immunity won’t solve all problems in law enforcement—but if you’ve been reading this newsletter long enough, you might have already realized that! These issues never exist in isolation, and one change can’t dismantle an entirely inequitable system. But abolishing qualified immunity sends a message that many more police officers who violate the Constitution will be held accountable. It also holds anyone with government power to the same standards as normal human beings. And shouldn’t we all be held to the same levels of accountability?
• Qualified immunity allows government officials and police to violate constitutional rights with impunity.
• It prevents civil lawsuits, not criminal cases.
• Victims of police violence must prove that not only was that conduct unlawful but that the officer would have known that the action was unlawful based on previous court cases of matching behavior.