End Qualified Immunity

The current uprising against police violence has forced us to revisit the issue of police impunity, yet we hear very little about a judicial doctrine that grants impunity to the police — a doctrine opposed on both the left and the right. That doctrine is called “qualified immunity.” It’s been criticized by Supreme Court Justices, in particular two Justices who are on nearly opposite sides of the Supreme Court ideological spectrum — Clarence Thomas and Sonia Sotomayor. Qualified immunity has been denounced by gun rights activists as well as civil rights activists. So what is it?

Basically, it says that police can shoot first and ask questions later, that they can be violent bullies and still remain “immune” from accountability either to their victims or to the public who pays their salaries.

But qualified immunity is not law; it’s judicial policy making.

In 1877, the US passed a Civil Rights Act sometimes called the Ku Klux Klan Act. This law permits citizens to sue law enforcement and other government organs for violations of Constitutionally protected rights.

The courts redefined that law in 1976 with the invention of the “qualified immunity” doctrine. The court held that the President and his representatives were not liable for their actions, even if they violated Constitutional rights, so long as they acted “in good faith” while “believing they were engaged in lawful actions.”

In 1982, the judiciary vastly expanded police impunity in Harlow v. Fitzgerald, in which the court extended qualified immunity beyond the President and his aides to “government actors,” which included the police. This incredibly elastic interpretation effectively opened the door to police abuse. Police officers themselves quickly learned “the courtroom script” for wiggling out of accountability.

Since Harlow, the court has consistently upheld and even widened this judicially-guaranteed impunity, especially to police. While there have been a few cases where the obvious and egregious nature of a violation has forced the courts to side with plaintiffs, in the overwhelming number of cases, this has resulted in police misconduct, including lethal violence, being shielded from accountability by the courts themselves.

In addition to the elastic clause of “good faith belief,” the courts have held that no grievance would be heard if it doesn’t match exactly the grievance and the context of the grievance in some earlier court finding. By this, I mean the facts of the case can deviate not one jot nor tiddle from an earlier decision for an identical plaintiff in identical circumstances . . . effectively rendering real investigations as rare as a unicorn.

Qualified immunity is the most common reason for the dismissal of harassment or brutality complaints. It doesn’t mean you will lose in court; it means your complaint will likely never see the inside of a courtroom. Because the likelihood of a plaintiff winning is so low, potential plaintiffs have a hard time even finding a lawyer who will take on a complaint if the client has insufficient funds for her or his own case. This is further complicated by the fact that members of the public in only twelve out of fifty states have open access to police disciplinary reports. Fifteen states have limited access to these reports, and twenty-three states conceal them from the public altogether.

If there’s not a remedy soon, either from the judiciary or the legislature, it’s a pretty sure thing this is not the last uprising we will see, as militarized police are increasingly used as protofascist storm troopers responding to the manifold crises of our period — climate destabilization, economic collapse, heightened social conflict over past and present inequalities, and pandemic. Police impunity continues to fuel the confusion, fear, anger, and disappointment of citizens, who are facing down cops, cops who — like secret police — conceal their identities with official approval. Qualified immunity is literally a license to kill.

Author of the books “Hideous Dream,” “Full Spectrum Disorder,” “Borderline,” “Mammon’s Ecology,” “Tough Gynes,” and “Smitten Gate.”