Qualified Immunity: Why do we care so much about protecting police and so little about victims of civil rights violations?

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

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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.

The 2020 Abolitionist Movement: A New Road to Liberation

BY: SAHER AL KHAMASH, SUMMER 2020 COLLABORATOR AT POWER IN PLACE

Cardboard cutouts have been an essential tenet to the BLM protests. Handmade, elaborate or simple, these cutouts capture some of the most powerful messages. Among those I’ve seen, the one that has left the biggest impression on me was a very little sign casually held by one hand at Stonewall in Lower Manhattan. Written in black ink it read “Abolish Police”. A sign so sweet and simple had opened my mind to a whole new world ~cue Aladdin theme music~. A world without prisons had been something I'd only been allowed to theorize about. At best it was an academic fantasy and at worst a delusion. Somehow seeing this concept actualized in such a concrete form sparked something within me. It wasn’t just the concept that struck me so powerfully however, but also the particular word “abolish”. 

To abolish means to formally put an end to a system, practice or institution. I feel as though abolition is a strong word for Americans because of its deep meaning in our history. The Civil War, the bloodiest war fought on this land, was fought over the idea of abolitionism. In a sort of a poetic way, I find that the use of “abolition” at this present moment in the United States of America, calls us to reckon with the parallels between slavery and mass incarceration, between slave patrols and police officers. In her book, The New Jim Crow, Michelle Alexander argues that slavery never really escaped American society, but rather has been rebranded time and time again. The Prison Industrial Complex and police function to relegate Black people to a second-class status by means of social control, economic repression, and political disenfranchisement. When our justice system criminalizes blackness, poverty and addiction, it denies support to Black communities. These actions justify the exploitation of Black people’s labor in prison and their murder at the hands of cops. Abolitionists seek to end these structures which subjugate Black lives and to replace them with systems that remedy community afflictions with dignity, respect and humanity. I find myself wondering now “what are we waiting for?” Abolishing police and prisons should be realistic goals in 2020. 

NYC protesters express their frustration with Mayor De Blasio and police department, calling to defund and abolish the NYPD. Photograph taken on June 10, 2020 at Washington Square Park, NY by Saher Al Khamash.

We currently live under a legal system that criminalizes blackness, poverty and addiction in various ways. The fact that hundreds of thousands are in jail right now because they simply cannot afford to pay bail is indicative of a “justice” system better suited to protect the wealthy and guilty rather than the poor and innocent [1]. Unjust criminalization of poverty and blackness are embedded in all aspects of the system. Take, for example, the sentence disparity between crack cocaine and powder cocaine. Although essentially the same drug, possession of 5 grams of crack cocaine, a cheaper drug used mostly by Black people, receives a 5-year minimum sentencing whereas possession of 500 grams of powder cocaine, a more expensive drug mostly used by White people, gets the same 5-year minimum [2]. Black people are also nearly 4 times more likely to get arrested for marijuana even though usage is relatively equal between white and Black people [3]. People who are economically driven into certain trades due to a lack of resources and opportunities, such as drug dealing and sex work, also face criminalization. Rather than restoring balance to those afflicted by poverty, addiction and discrimination, our justice system is based in stigmatizing and penalizing them. What happens is that the most vulnerable and targeted members of society go to prisons that then exploit their labor, paying them low-to-no wages [4]. There is no hope in reforming an inherently racist and exploitative penal system. Instead, we ought to look at the programs of restorative justice that exist in our society and invest in this method of uplifting struggling community members.

Spokesperson for Revolutionary Communist Party (also known as Revcom) holds up sign advocating for revolution. Photograph taken at Union Square, NY on June 2nd, 2020 by Saher Al Khamash.

In place of punitive systems, abolitionists seek a system of restorative justice. Abolition is not only about ending the police, jails and prisons. It is dedicated to ending the conditions which lead people to them. It acknowledges that there are ways to deal with crime and imbalances in our society instead of locking people up. When discussing abolition, people often ask “well how do we respond to crises without police or prisons?” The answer is by reallocating funds. Divesting from the police and reinvesting in social sectors will not only reduce the incentive for conflict or “bad choices” but also communities will be better equipped to resolve them. Currently police are tasked with addressing a wide range of community conflicts from noise complaints to domestic violence to mental health crises. These are tasks that can be fulfilled by other members of the social sector. We have social workers specialized in domestic violence who could respond to domestic violence issues. Mental health is a medical issue and not a criminal one. There are professionals who are certified to respond to someone experiencing a mental health crisis. Police are responding to calls that aren’t exactly crimes. As of right now, many state police are heavily funded, while social services scramble for money. Between the fiscal years of 2014 and 2019, New York spent 44.1 billion dollars on the police department and corrections and only 9.9 billion in homelessness services and 6.8 billion in housing preservation and development [5]. After much protesting and noise in New York City this past month, Mayor De Blasio has promised to cut $1 billion dollars from N.Y.P.D. funding in the 2021 fiscal year. You have probably heard or seen the demand to defund police among activists. Essential to the process of abolition is the incremental budget cuts on the police force (until funding ultimately reaches $0) and reallocation of those funds to communities’ social sectors such as healthcare, education, and housing. Abolition is not merely a question of abandoning structural racism, but of wanting to create genuine change in our afflicted communities.

Large crowds of people gather at the historic site of Stonewall to mourn the lives Black Trans people who were killed by law enforcement. Photograph taken June 2nd, 2020 at Stonewall, Manhattan by Saher Al Khamash.

I can imagine that for some this sounds extreme. You might even be asking yourself “what about police reform?” Abolitionists argue against reform because as the mainstream response to police brutality, reform has failed to reduce brutality and crime for decades. The fact of the matter is that systems which function to preserve white supremacy cannot reform themselves out of racism; they can only be deconstructed and replaced. Reform may have provoked real change if the issue really was just “a few bad apples;” the reality however, as Ava DuVernay puts it, is that, “the whole damn tree is rotten”. Most studies show that increasing diversity or “cultural sensitivity” training among police does not reduce crime nor brutality [6]. And while Joe Biden continues to propose to enhance “community police,” we have to acknowledge that these officers brutalize and kill Black people too. After all, Trayvon Martin was killed by a neighborhood watch volunteer. Reform often leads to increased funding of the police force for more training and equipment that could otherwise be put into the social sectors of communities. These misguided attempts at reform have only prolonged real change all under the illusion of gradual progress. The inability to address the fundamental racism in our police, prison and criminal justice system has only led to greater repression of Black communities. After centuries of systemic oppression - slavery, indentured servitude, Jim Crow, redlining, overpolicing, mass incarceration, housing discrimination, job discrimination, disenfranchisement and much more - the last thing Black communities need is more punishment. Black communities deserve a system that serves and protects them- a restorative justice. 

You may not have imagined a world without police or prisons before, but you also probably didn’t imagine a year like 2020. In some kind of a perfect storm, COVID 19, mass unemployment, and social distancing measures exposed our country’s rampant racism to a larger audience than ever before. Social media in particular has played a significant role in spreading awareness and news, mobilizing agents of change, and organizing peaceful protests. There have been Black Lives Matter’s protests in over 1,600 places, in every state of the U.S., all across the globe and the numbers are still growing [7]. The present moment has lent us unprecedented leverage to finally uproot our nation’s racism and plant new seeds for the world we want to live in. The time has come when we have to decide between recycling systems of oppression or reconstructing systems of liberation. Frankly, I believe the universe is acting too well in our favor for us to do anything but dream big and shoot for the stars we once didn’t imagine.

References

[1] Wing, Nick. "Our Bail System Is Leaving Innocent People To Die In Jail Because They're Poor." Prison Legal News. Last modified February 24, 2017. Accessed June 17, 2020. https://www.prisonlegalnews.org/news/2017/feb/24/our-bail-system-leaving-innocent-people-die-jail-because-theyre-poor/.

[2] Vagin, Deborah J., and Jesselyn McCurdy. "CRACKS IN THE SYSTEM: 20 YEARS OF THE UNJUST FEDERAL CRACK COCAINE LAW." ACLU. Last modified October 2006. Accessed June 17, 2020. https://www.aclu.org/other/cracks-system-20-years-unjust-federal-crack-cocaine-law.

[3] "THE WAR ON MARIJUANA IN BLACK AND WHITE." ACLU. Accessed June 17, 2020. https://www.aclu.org/issues/smart-justice/sentencing-reform/war-marijuana-black-and-white.

[4] Sawyer, Wendy. "How much do incarcerated people earn in each state?" Prison Policy Initiative. Last modified April 10, 2017. Accessed June 17, 2020. https://www.prisonpolicy.org/blog/2017/04/10/wages/.

[5] Ricciulli, Valeria, and Caroline Spivack. "What NYC could do with its $6 billion police budget." New York Curbed. Last modified June 5, 2020. Accessed June 16, 2020. https://ny.curbed.com/2020/6/5/21279214/nyc-defund-nypd-police-budget-affordable-housing-homelessness.

[6] Vitale, Alex S. "The Limits of Police Reform." Chapter 1 to The End of Policing. Brooklyn, NY: Verso, 2017.

[7] Haseman, Janie, Karina Zaiets, Mitchell Thorson, Carlie Procell, George Petras, and Shawn J. Sullivan. "Tracking protests across the USA in the wake of George Floyd's death." USA Today. Last modified June 12, 2020. Accessed June 16, 2020. https://www.usatoday.com/in-depth/graphics/2020/06/03/map-protests-wake-george-floyds-death/5310149002/.

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Saher Al Khamash is a rising senior at Middlebury College, where she majors in Global Security Studies. She also loves studying Spanish, Arabic, Religion and Art History and has a passion for yoga, tea and cats!

Why We Riot

BY: SOPHIA CASTEN, SUMMER 2020 COLLABORATOR AT POWER IN PLACE

As we move, sit, protest, and isolate through the 51st anniversary of Pride Month, it is imperative to call upon white and non-Black members of the LGBTQ+ community, like myself, to recognize the roots of our celebratory month and its relevance given the resurgence of the Black Lives Matter movement. The recent riots that took place across the country in response to the killing of George Floyd, an unarmed Black man in Minneapolis and many more people like him, have gained copious amounts of criticism across political parties and social identities including from members of the LGBTQ+ community. 

Though the criticism is widespread, it is imperative to remember that Pride month was created from a series of riots. Specifically, the Cooper Do-Nuts Riot, The Black Cat Tavern riot, Gene Compton’s Café Riot, and most famously, The Stonewall Riots. The culmination of these riots, which were often led by trans people of color, were in direct response to homophobic and transphobic police violence that plagued the LGBTQ+ community for decades prior to the rioting. It is really easy to forget about the beginnings of Pride when it is now a celebration trademarked with rainbows, sexual liberation, and nation-wide parades and not violence, criminalization, and blatant police brutality. 

I urge members of the LGBTQ+ community, including allies, to see the Black Lives Matter riots and protests happening now as a sign of a revolution that could turn into a celebration. Just as Marsha P. Johnson, a Black trans woman, is hailed for throwing the first brick at Stonewall, we must hail the young leaders, mainly women of color, who continue to organize and fight back against racist police brutality. Many women politicians who have been outspoken about social justice issues from the beginning are urging all supporters and members of the LGBTQ+ community to support the Black Lives Matter movement in its entirety. 

New York Representative Alexandria Ocasio-Cortez (affectionately known as AOC), shared in a June 1st 2020 tweet that she, along with a few other politicians, introduced a resolution “calling on the FDA to allow gay and bisexual men to donate blood without discrimination.” During a global pandemic where blood donation is necessary and where Black people are disproportionately impacted by the virus, prohibiting members of the LGBTQ+ community from donating is “especially cruel.” Continuously, we are seeing Black and non-Black members of the LGBTQ+ community speak out against racial injustice while remembering the beginnings of Pride over 50 years ago. 

Activists have been diligent in sharing resources that folks can donate to/support, if able. Below is a list of organizations and groups that support Black LGBTQ+ rights. 

https://www.glitsinc.org/

https://transgenderlawcenter.org/support

https://marshap.org/donate/

https://my.truecolorsunited.org/give/118989/#!/donation/checkout

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Sophia Casten is a rising junior at Smith College majoring in Government with a certificate in Reproductive Health Rights and Justice. She is a Yoga teacher and a Community Health Organizer at the Smith Wellness Center and is passionate about spreading inclusive wellness practices. Sophia is interested in reproductive justice, LGBTQ+ rights advocacy, and public policy reform.