Fixing qualified immunity
Last week, the US Supreme Court reinforced its support for qualified immunity, the legal doctrine that has been widely criticized for protecting police officers who abuse their authority or behave irresponsibly. The simplest method for reform remains with Congress; the legislative package supported by the American Union in 2022 will clarify the underlying law and reshape qualified immunity as part of a wider program of police reforms.
In 1871, Congress passed the Civil Rights Act, which was also known as the Ku Klux Klan Act in those post-Civil War days. They used plain language, stating that “every” government official who uses their legal authority to deprive someone of “any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured” in a lawsuit. And for nearly 100 years, this was the law of the land.
However, in 1967, the Supreme Court reinterpreted the law to create qualified immunity. They didn’t provide total immunity from lawsuits, but “qualified” it by protecting police officers from lawsuits when the state of the law was unclear. By default, the law is unclear unless there is a precedent with the same circumstances.
In 2004, when a woman seven months pregnant was repeatedly shocked with a Taser after a dispute over signing a speeding ticket, she sued the officers for using excessive force. According to ABC News,
Although the court found a constitutional violation on the facts presented to it, it ruled that the officers were entitled to qualified immunity from Brooks’ constitutional claim because the law was “not sufficiently clear at the time of the incident.”
In 2013, police officers collected $275,000 in cash and rare coins while serving a search warrant, but only turned in $50,000. A court awarded the officers qualified immunity, because the victims “did not have a clearly established… right to be free from the theft of property.”
In 2014, when a police officer recklessly fired at a dog but instead shot a 10-year-old, a court ruled that this “did not violate any clearly established Fourth Amendment rights,” and he was thus entitled to qualified immunity.
In 2018, when more a police captain led two dozen law enforcement officers on a no-knock drug raid that went to the wrong house, a court ruled he had qualified immunity from being sued by the very surprised 78-year-old man who’d been watching TV when his doors were knocked down. While the case law was clear that going directly to the wrong house was a no-no, this was different because “the Response Team initially went to the correct address” before “conclud[ing] that the house next door … must be the actual target residence.”
The Blueprint for a Better America, the legislative package backed by the American Union of swing voters, would address these situations by adding the following language to the underlying law:
“It shall not be a defense … that the rights, privileges, or immunities secured by the Constitution and laws were not clearly established ...”
(Read more: How the American Union is shaking up the midterms)
It’s important to emphasize that this would only lift the immunity invented by the Supreme Court. A person who claims harm would then be able to have the facts heard in a court of law, with a jury to listen and decide. There is even some support for this at the Court itself; last year, Justice Clarence Thomas offered a 6-page dissent arguing that the court’s “qualified immunity doctrine appears to stray from the statutory text” and should be reexamined.
While fixing qualified immunity so that people can seek justice in court is an important reform, it’s even better to reduce the amount of injustice in the first place. Other provisions in the 2022 legislative package include:
- Requiring de-escalation techniques be tried before using force, and lethal force only as a last resort.
- Requiring law enforcement officers to intervene when another officer is using excessive force.
- Banning the use of choke holds.
- Restricting the use of no-knock warrants.
- Repealing the 1033 program, which transfers military surplus to local police departments.
- Establishment of a public, searchable, national police misconduct registry.
As Martin Luther King Jr. said, “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny.” When 3.5% of Americans unionize as swing voters in 2022, our network of mutuality will control the balance of power in Washington. Learn more at AnAmericanUnion.com.