By Shana-Tara O’Toole | Due Process Institute | President
As tens of thousands of us take to the streets to demand justice and police accountability after the police killings of George Floyd in Minneapolis and Breonna Taylor in Louisville, we are reminded once again of the repeated failures of our criminal legal system to protect its own people—particularly black Americans. Because policing is largely left to the states and localities, the role of the federal government is inherently limited in shaping policing policy—yet it has now become obvious to a larger segment of our population that meaningful policing reforms are desperately needed. Despite the fact that many policing reforms need to be created and executed by, and on behalf of, the local communities they serve, there is at least one glaring policy failure that federal lawmakers can remedy right now: the ability to hold police officers civilly liable for violating our constitutional rights. Unfortunately, the court-made doctrine of “qualified immunity” has eroded the availability of an important civil rights law to people when a police officer or other government agent violates their rights. Yesterday, a bipartisan group of lawmakers introduced legislation to end that and Due Process Institute is proud to have supported their introduction of the Ending Qualified Immunity Act.
To put this particular reform into appropriate context, we need a brief historical detour. After the Civil War, the federal government took on the responsibility to protect its citizens from state and local government actors. Until that point, the Bill of Rights had been interpreted to only apply against the federal government. Before the ratification of the 14th Amendment, states remained almost wholly responsible for the protection of their own residents. Unfortunately, because of the legacies of slavery and the racism upon which states had operated and thrived, the civil rights of the newly emancipated black Americans were routinely violated by both private citizens and government actors after the war. For example, the Ku Klux Klan, sometimes consisting of or enabled by individuals in local law enforcement, used terrorism and violence to keep black Americans under white supremacist rule.
In response to atrocities that went unanswered by state and local governments and courts, the federal government enacted a number of laws and protections, including the one now codified in 42 U.S. Code Section 1983 that reads, in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . (emphasis added)
In plain English, if someone working for the government violates your constitutional rights, you can sue them for that violation under what is often referred to as “Section 1983.” The law’s explicit purpose was to provide a much-needed remedy in federal court because state and local governments and courts “by reason of prejudice, passion, neglect, intolerance or otherwise” were unwilling to enforce the due process rights of black Americans guaranteed by the 14th Amendment.
Unfortunately, the Supreme Court began creating exceptions to this law, which can be found utterly nowhere in the text or history of the statute. For example, prosecutors are protected from civil rights liability for purposefully presenting lies to a grand jury or at trial. Another exception is called “qualified immunity,” and it requires that for the government agent to be liable under Section 1983, the particular violation has to be “clearly established” in the specific legal jurisdiction at the time of the incident. Essentially this ends up meaning that a victim cannot successfully sue a police officer who harmed them under this law unless their rights were violated in pretty much the exact same way that had already occurred in their area and been held to be illegal in court. The factors that many people would assume might matter most—was the police conduct intentional; was it reasonable for police to believe the victim presented a real “threat” under the circumstances; how grave was the harm done to the victim—are not considered when determining whether the violation was “clearly established.”
For an extensive explanation of the history of qualified immunity, read Prof. William Baude’s excellent law review article, “Is Qualified Immunity Unlawful?” (Spoiler alert: It is.)
For those of you who might be thinking that maybe qualified immunity sounds like a reasonable limitation to what otherwise might lead to unfairly assigning civil liability to good-faith or accidental conduct on behalf of police officers who were really just trying to do their best, let me clarify. This judge-made doctrine has protected many well-documented examples of intentional police misconduct and violence from civil liability.
Consider this case from Texas: police were having a prolonged interaction with an armed man walking through a residential neighborhood firing his gun at mailboxes. At all times, the suspect was described as a black man wearing a brown shirt—on foot—and the police on the scene who could see the perpetrator repeatedly confirmed that description. At some point, that man ran from view. The officers set up a defensive position. Moments later, a mentally impaired black 25-year-old riding a bicycle, wearing a blue jacket, carrying a toy gun in his belt came into view. Within six seconds of spotting him, the officers shot him 17 times. As he lay bleeding on the ground, he was tased and hand-cuffed. He died at their feet. The court reviewing the case agreed that the officers violated the victim’s constitutional rights by using deadly force against him when he posed no threat to anyone. But nonetheless, the officers were entitled to qualified immunity because the court could not “conclude that [the victim’s] right to be free from excessive force was clearly established here.” Similarly, as Cato Institute’s Clark Neily recently explained, the doctrine was used to shield a police officer in Nebraska who “picked up a five-foot-tall, unarmed woman clad only in a bathing suit and drove her head-first into the ground, knocking her unconscious and breaking her collarbone—not because it was lawful for him to do so, but rather because there happened to be no case on point with precisely those facts.” The police had been called to the pool that day because she and a friend were horse-playing around. She had her back turned to the officer when she was body-slammed to the ground in front of her three children.
Most years there are cases at the Supreme Court begging for the justices to reconsider this doctrine and this year is no different. There are several cases pending—including one in which a court granted immunity to a sheriff who shot a ten-year-old child lying on the ground while attempting to shoot a pet dog that wasn’t posing a threat. But their decision to accept the cases for review has been postponed and the nation continues to wait to hear if the Supreme Court will consider any of these horrifying cases (several of which our organization has supported as part of our bipartisan amicus efforts to bring more accountability to the violation of due process rights in our criminal legal system).
Qualified immunity has seriously weakened a civil rights protection that was specifically enacted to protect black Americans from governmental abuses of power. Of course, regardless of the history behind its enactment, that law protects us all, and the doctrine of qualified immunity takes away that right from victims irrespective of our race. But the reality is that because our police focus so much of their most aggressive tactics and policies in black neighborhoods, and that black people are more likely to come into police-initiated contact with officers than others, qualified immunity serves as one of many systemic injustices that disproportionately burden black Americans.
Every man, woman and child in our country can watch video of what happened minute by minute between George Floyd, a black man, and the white officer who was arresting him. There is irrefutable proof of much of what happened—a situation that is frequently not the case concerning a person’s interactions with the police and something that sets his death apart from many others, including that of Breonna Taylor. But even in a case like this, as the law stands now, Mr. Floyd’s family can only sue the officer who killed him under a civil rights law specifically enacted to protect black people from white law enforcement officers who intentionally violate the Constitution if there is an existing case in the Eighth U.S. Circuit Court of Appeals that has an almost identical set of facts—an officer kneeling on a suspect’s neck (a policy officially prohibited by many police departments), whose face is pressed into the street, who is already handcuffed, for almost 9 minutes—during which time the person explains he cannot breathe (at least 16 times during a 5 minute span) before he loses consciousness.
It is important to recognize that repealing qualified immunity is by no means “enough” to address the fears, abuses, and institutional failures that have brought us to this moment. It is merely one mechanism designed to hold police officers accountable for their actions and to hopefully prevent similar conduct. And there need to be other effective mechanisms. But the Ending Qualified Immunity Act represents one long overdue and meaningful correction that Congress can make now. Due Process Institute will work tirelessly to see it passed into law.
Due Process Institute hears the many voices calling for accountability across our nation. Since our founding, we have committed ourselves and our work to correcting many injustices that infect our criminal legal system. We work hard to preserve and protect due process rights for all but we are highly cognizant of the critical need to protect those whose rights are most often violated by our government.
We commend Rep. Justin Amash (L-MI) and Rep. Ayanna Pressley (D-MA) for looking past their many differences to lead this important bipartisan bill forward in an effort to undo this court-created injustice. And we look forward to working with all those who work toward a more just America.
For more on how racism has historically been part and parcel of our criminal legal system, read Condemnation of Blackness: Race Crime, and the Making of Modern Urban America by Khalil Gibran Muhammad; Policing the Black Man: Arrest, Prosecution, and Imprisonment, Angela J. Davis, ed., and Just Mercy: A Story of Justice and Redemption by Bryan Stevenson.