Through press coverage in the last couple of years, chances are good that you may have heard of qualified immunity. If case you haven’t, it’s a legal construct that prevents police officers from being held liable in civil suits when they are performing their job in good faith. Like any power, it can be abused in the wrong or politically-motivated hands, allowing irresponsible and reckless police behavior to go unpunished.
Understanding how we ended up in this mess requires a history lesson, and this is where the infographic comes in. Like all roads to Hell, Qualified Immunity began with good intentions.
In true Swiftie Fashion, I’m going to take you through the Eras Tour of Qualified Immunity.
The History of Qualified Immunity
Established in 1871, Congress adopted The Ku Klux Klan Act in response to – you guessed it – the Ku Klux Klan terrorizing people of color. This was especially urgent, as the United States was still in the post-Civil War Reconstruction era and newly freed slaves required protection from police officers and mobs committing horrific acts of violence. It was later codified as 42 U.S.C. § 1983, Civil Action for Deprivation of Rights.
The 1960’s
In 1961, Monroe v. Pape would expand Section 1983 to hold government officials (state or federal) and private citizens financially accountable when they infringed upon anyone’s constitutional rights, not just people of color.
In 1967, a U.S. Supreme Court Case would change the circumstances and limit the ability to make Section 1983 claims. The Warren Era of the United States Supreme Court, in session from 1959-1969, is best remembered for its expansion of civil rights in America. Knowing this, it is perplexing to me that this same court laid the groundwork for qualified immunity as we know it today. In Pierson v. Ray, 386 US 547 (1967), the court established that qualified immunity exists for police acting in good faith and with probable cause for their actions.
The 1970’s
The 1970’s would only see one qualified immunity case come to the Supreme Court. In Bivens v. Six Unknown Named Agents, the Burger court ruled that Federal agents could not infringe upon constitutional rights and act outside of their authority.
The 1980’s
The 1980’s had three notable cases alone. In 1982’s Harlow v. Fitzgerald, the Supreme Court decided that Federal civil servants were also entitled to qualified immunity. In 1986’s Malley v. Briggs, the Supreme Court held that qualified immunity does not apply to officers who make wrongful arrests with faulty warrants. Anderson v. Creighton further strengthened qualified immunity, finding police officers could not be held personally liable if they reasonably believed the search was lawful.
The 2000’s
Without question, the 2000’s saw a significant number of qualified immunity cases, two particularly of note. Though Saucier v. Katz would be overturned, it paved the way for Pearson v. Callahan, establishing a two-part test, to be decided as low as the trial court level. The two-part test consists of:
1.) Identifying whether a constitutional right was violated in the case, and
2.) Determining if the right was clearly established at the time of the event. It found that qualified immunity applies unless officers violate constitutional rights.
The 2010’s Onward
Perhaps due to advances in technology and an ability to provide footage of misconduct, 2010 onward is seeing an uptick in qualified immunity cases. Apparently, the Supreme Court was handing out qualified immunity left and right, allowing police to potentially interview minor children without parental consent or a warrant (Camreta v. Greene), shoot people who flee arrest if they are perceived to be a threat to the public (Plumhoff v. Rikard), violate your rights if you have a mental health emergency and are a perceived threat (City and County of San Francisco v.Sheehan), and allow Border Control agents to get away with killing 15-year-olds (Hernandez v. Mesa).
Qualified Immunity Prevents Law Enforcement Accountability
As much as I would like to say that courts carefully apply qualified immunity, I cannot. In fact, it has become a way to excuse blatant police misconduct.
Below are just a handful of cases where police were granted qualified immunity:
- 57-year-old Robert Trammell was injured after a police dog was released on him without warning.
- Leo Lech’s home was decimated by police in pursuit of an armed shoplifter.
- Johnny Leija was very ill and disoriented; police shot him when he wouldn’t return to his room.
- Shaniz West‘s home was destroyed by officers looking for an ex-boyfriend who no longer lived in her home.
And here is a more current case where I fear qualified immunity may be applied:
- In 2021, a Flint, Michigan family was subjected to a no-knock warrant and illegal search; the police had the wrong house. In a future post, I will further discuss No Knock Warrants and Raids.
A Reuters special investigation found that between 2017-2019, courts sided with the police in 57% of the excessive force cases heard during that time. Instead of addressing this disparity through meaningful reform, what has happened is the deployment of circular logic. It goes like this: police get out of these cases because SCOTUS can’t find similar case law to apply to the cases, but this is only because SCOTUS won’t hear new cases to challenge qualified immunity because lower courts applied qualified immunity.
Just this year, SCOTUS refused to hear two cases from Texas where – I think – any reasonable person would consider law enforcement’s actions’ gross misconduct: an on-duty guard failing to intervene when an inmate hung himself with a cell phone charging cable, and an officer shooting a man who doused himself in gasoline.
In Kiesla v. Hughes, SCOTUS Justice Sonia Sotomayer called out the unchecked power of qualified immunity stating, “It tells officers they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Something has to change.
What Can We Do About It?
Knowing your rights and speaking out against police misconduct is the most beneficial thing we as citizens can do to reform qualified immunity policies.
Educate yourself as much as you can about qualified immunity. I recommend the following vidoes for your viewing pleasure.
- How Cops Get Away with Murder – Legal Eagle
- Police Accountability – John Oliver
Support candidates that champion criminal justice reform. Believe it or not, they are out there. For example, Representative Tyrone Carter of Detroit is a veteran police officer and recognizes the need for reform.
If you’ve suffered misconduct, report it. Don’t let bad behavior get swept under the rug. You can read about what I did to combat it in my own traumatic police encounter.
Support criminal justice reform charities and organizations. Volunteer or make donations to groups that help change oppressive policies.
Just like surgeons who botch surgery and get sued, police misconduct should also be punished. Police should be trained in deescalating situations rather than immediately reaching for their guns.
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