Photograph by Lucas Jackson/ Reuters via Washington Post.
BY: PAIGE REDDINGTON, SUMMER 2020 COLLABORATOR AT POWER IN PLACE
Have you ever wondered why police are able to get away with firing a weapon with no consequences in response to mild situations? Why these instances are rarely brought to light, or not tried in court against officers? What specifically protects police officers in these instances, and allows them to frequently abuse their power? It is more than just inherent bias and institutional racism within the justice system—there are specific rights in place protecting police officers, which allow them to frequently act in accordance with their racism and bias, without facing adequate consequences. Meet qualified immunity, a doctrine inherently defending police officers’ decisions, often regardless of what the decision is.
Qualified immunity is a legal doctrine which protects police officers from having legal action taken against them. This doctrine responds to section 1983 of federal law which states the right to sue officials who have violated constitutional rights [1]. The purpose of qualified immunity is to balance public officials’ power so that they cannot take advantage of their power while performing their duties, but at the same time protect them from being held liable when they need to make essential decisions in order to perform their job [2]. This doctrine stands regardless of the violation of someone’s civil rights. The only exception to this protection of police officers is if their action violates “clearly established” law. In order to decide if the action violates a “clearly established” right, courts question if a “reasonable official” would think that the defendant’s action violated the victim’s rights, applying law in effect at time of the incident, rather than current law at the time of the court’s consideration. If the action is not deemed as a violation of “clearly established” law, then the victim is unable to take the officer to court to try them [3].
The present-day ideals of qualified immunity were established in the case of Harlow v. Fitzgerald (1982). In Harlow, rather than previously examining the officer’s “subjective good faith,” they decided to use the standard of “clearly established” law, which was defined as actions that “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” This change did increase protection for police officers, but also, as claimed by the court, steadfastly prevented police from acting in an unruly or exploitative way.
However, this raises several issues that prevent victims from obtaining justice. Victims whose civil rights have been violated in new, unique ways that have not previously been tried in court are unable to bring the violation to court, since the court needs victims to indicate a past, similar ruling that demonstrates the current violation as “clearly established.” As a result, even if this new violation becomes a repeated issue, it remains unqualified to be tried in court. This specifically sets up the legal system so that justice can never be served in new cases of violations with public officials, and, as a result, prevents and discourages victims from attempting to defend their rights.
In Pearson v. Callahan (2009), the court ruled that, when considering a case, only the “clearly established” qualification must apply, when previously in 2001, it was decided that first the court should consider if the conduct infringes on a constitutional right, and second if it is clearly established. Now even if conduct infringes on someone’s constitutional rights, if it has not been taken to court previously, it is not considered clearly established and cannot be tried in court. Another obstacle the “clearly established” qualification brings stems from the definition of a “reasonable officer.” In 1986, the court decided that the situation must now be judged by “any reasonable officer” in order to be “clearly established.” According to Harvard Law professor Scott Michelman, this means that the action must be so clearly wrong that any officer—even the “least reasonable officer”—must recognize it as a violation.
Many victims do not even attempt to bring their case to court, because there likely has not been a prior court case similar to their case, since qualified immunity was established in 1982. It creates obstacles for victims attempting to achieve justice, to the point where striving to take legal action has too many steps and costs, causing excessive effort, depletion of financial resources, and overall exhaustion. These costs of just attempting to achieve justice in the legal system outweigh the benefits of actually achieving a positive outcome, especially when the odds that victims can even bring their case to court is so low. Victims may not have the legal resources to research and discover whether their case is “clearly established” or know how to defend that it is “clearly established,” since this doctrine is so specific and rooted in legal history.
Supporters of qualified immunity argue that this doctrine is essential for police officers as it allows them to make instantaneous decisions when their duty calls for it, such as in life or death situations [4]. Supporters also claim that police officers would be responsible for a large sum of legal expenses every time legal action is taken against them, and the exhaustion that these cases would bring to police officers would detract from the attention they bring to their actual duties of handling important public issues. The Supreme Court argues that few people would decide to go into positions of governmental office if they did not have protections like qualified immunity. Essentially, the Supreme Court contends that you cannot take legal action against police officers if they were not aware of the law at the time of the violation—hence, the “clearly established” law distinction.
However, the reality is that very few qualified immunity cases actually involve these life or death situations where the officer was acting out of necessity. The Cato Institute reported that the Supreme Court is in the process of reviewing eight various cert petitions involving qualified immunity, yet the “overwhelming majority” of these petitions do not demonstrate any direct harm to the officer where they would need to make instantaneous decisions for their own protection. Justice Clarence Thomas, an originalist, criticized that qualified immunity has been used to exercise “free-wheeling policy choices” which the court does not have the power to actually make. Qualified immunity even stunts the ability for constitutional law to develop over time, as important cases are unable to be tried because they are not qualified as clearly established—this is particularly important as new innovations and technologies advance over time, raising new questions that remain unaddressed due to this doctrine.
The qualified immunity doctrine does not even rid police officers of the financial burden of legal expenses. UCLA law professor Joanna Schwartz reports that police officers only bore 0.2% of the burden of expenses, due to police indemnification. As a result, officers’ financial costs rarely come out of their own money. Meanwhile, many victims are discouraged from even attempting to bring a case to court, because of its exhaustion of resources with a small chance of positive outcome. Even though in 1976 Congress allowed lawyers representing victims of civil rights violations to recover, this is not applicable in cases that have been denied due to qualified immunity. As a result, many victims are unable to even find lawyers to represent and fight for them in the first place.
While the elimination of this doctrine could discourage people from becoming police officers, it is more likely to discourage people who want to abuse their power from becoming police officers. Qualified immunity reinforces what Justice Sonia Sotomayer refers to as a “shoot first and think later” mentality, which involves being less concerned with the consequences of firing a weapon. The removal of qualified immunity would not ensure that victims win cases against police officers. Rather than discouraging and preventing victims from obtaining justice, the removal of qualified immunity would simply allow them a trial in court, and discourage officers from abusing their power due to the increased likelihood of consequences. The removal of qualified immunity would eliminate just one of the many obstacles for victims of police brutality on the path to fighting injustice.
On June 4, the Supreme Court reviewed a number of petitions involving qualified immunity, but it took a pass on resolving qualified immunity for the time being, due to less than four votes agreeing to come back to it then. This now puts the issue in Congress’s hands [5]. Recently, Representatives Justin Amash and Ayanna Pressley have proposed an Ending Qualified Immunity Act, which calls to make additions to section 1983 in order to limit the amount of immunity granted to officials, discouraging them from unfairly exercising their power [6]. Senator Cory Booker has also proposed a framework for police reform that would rectify qualified immunity [7]. If you are wondering what can be done in the meantime, you can sign a number of online petitions calling for the end of qualified immunity, spread information about qualified immunity to family and friends, or, if you have the financial means, donate to organizations working to end qualified immunity, like the Institute for Justice.
Resources:
Donate to Institute for Justice
End Qualified Immunity Petition
Qualified Immunity Needs Legislative Reform Petition
Congress: Qualified Immunity Petition
Rep. Ayanna Pressley and Justin Amash’s End Qualified Immunity Act
Chair Bass, Sen. Booker and Harris, and Chair Nadler’s Justice in Policing Act of 2020
Sen. Mike Braun’s Qualified Immunity Reform Act
References
[1] Leef, George. “Qualified Immunity -- A Rootless Doctrine The Court Should Jettison.” Forbes. Last modified March 21, 2018. Accessed June 23, 2020. https://www.forbes.com/sites/georgeleef/2018/03/21/qualified-immunity-a-rootless-doctrine-the-court-should-jettison/#3692c38231c7
[2] “Qualified immunity.” Legal Information Institute. Accessed June 23, 2020. https://www.law.cornell.edu/wex/qualified_immunity#:~:text=Pearson%20v.%20Callahan%20.,established%E2%80%9D%20statutory%20or%20constitutional%20right.
[3] Sobel, Nathaniel. “What Is Qualified Immunity, and What Does It Have to Do With Police Reform?” Lawfare. Last modified June 6, 2020. Accessed June 23, 2020. https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform
[4] Sibilla, Nick. “New Bill Would Abolish Qualified Immunity, Make It Easier To Sue Cops Who Violate Civil Rights.” Forbes. Last modified June 3, 2020. Accessed June 23, 2020. https://www.forbes.com/sites/nicksibilla/2020/06/03/new-bill-would-abolish-qualified-immunity-make-it-easier-to-sue-cops-who-violate-civil-rights/#8d2cd096fbc9
[5] Dwyer, Devin. “Supreme Court won’t revisit qualified immunity for police, leaving it to Congress.” ABC News. Last modified June 22, 2020. Accessed June 23, 2020. https://abcnews.go.com/Politics/supreme-court-wont-revisit-qualified-immunity-police-leaving/story?id=71374240
[6] “Reps. Pressley, Amash introduce bipartisan legislation to end qualified immunity.” U.S. Congresswoman Ayanna Pressley. Last modified June 4, 2020. Accessed June 23, 2020. https://pressley.house.gov/media/press-releases/reps-pressley-amash-introduce-bipartisan-legislation-end-qualified-immunity
[7] Silva, Christianna. “Cory Booker Wants To End Qualified Immunity For Police Officers.” NPR. Last modified June 7, 2020. Accessed June 23, 2020. https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/06/07/871713872/cory-booker-wants-to-end-qualified-immunity-for-police-officers
Paige Reddington is a rising senior at Amherst College majoring in English. She is an Arts and Living Writer for the campus newspaper The Amherst Student, a staff editor for the commentary magazine The Indicator, a member of the Reproductive Justice Alliance, and runs cross country and track for Amherst. Her interests include writing, social justice, and intersectionality.