Over the past several weeks, we have once again seen a string of senseless killings of innocent black citizens including George Floyd, Ahmaud Arbery, and Breonna Taylor. Time and time again, we have seen the all too common stories of a police officer's abuse of power resulting in the death of an innocent black man. And yet, for all of the social media campaigns, outpourings of support for the victims' families, and demands for justice, nothing seems to change.
As we continuously see the criminal justice system fail to provide adequate remedies in these situations, I have often wondered why there are never any wrongful death lawsuits filed against these officers, which could provide multi-million dollar settlements to the relatives of victims. The answer, as it turns out, is qualified immunity, a concept which has been brought into the public light by Rep. Justin Amash (L-MI) in his latest bill, the "Ending Qualified Immunity Act."
In the Civil Rights Act of 1871, it was established that public officials who clearly violate someone’s constitutional rights could be sued, a very logical idea. But through the creation and expansion of qualified immunity, this portion of the CRA of 1871 has been amended and neutered by the courts.
The idea of qualified immunity was first introduced in the 1967 U.S. Supreme Court case Pierson v Ray. In 1961, policemen had arrested a group of black ministers on the basis of probable cause for allegedly disrupting the peace by using a white’s only bathroom. It later was discovered that they did not disrupt the peace in their use of the bathroom, and thus the ministers sued, stating that the false arrest violated their constitutional rights. This led the Supreme Court to create the idea of qualified immunity to prevent lawsuits towards cops acting on probable cause, provided they acted in “good faith.” The majority opinion stated that a policeman should not have to choose “between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does.” Though this doctrine prevented the ministers from succeeding, the Court’s position was logical so as to prevent frivolous lawsuits and dereliction of duty.
But in Harlow v. Fitzgerald, the Court set a new standard. No longer was the prerequisite of “good faith” on behalf of the government official necessary. According to the Court, even malicious actions should receive qualified immunity when victims cannot “clearly establish” the existence of a right. Thus, the burden of proof was now switched from the invoker of qualified immunity to the challenger. In practice, this means that unless the victim can find a previous ruling involving the same exact context and conduct, qualified immunity applies and the suit is to be thrown out.
Now, it is almost impossible for a lawsuit against government officials, including police officers, not to fall under the broad definition of qualified immunity. If no previous suit had the identical context and egregious conduct as the suit alleges, the victim is simply out of luck. Furthermore, it is borderline impossible to receive an exception (only one such example has been granted, in the 2002 Supreme Court case Hope v. Pelzer).
While this debate over legal definitions may seem full of semantics and legal jargon, its real-word implications are all too clear. Take, for instance, the brutal murder of George Floyd in which an officer knelt on a detainee’s neck for 9 minutes, while the detainee screamed “I can’t breathe! I can’t breathe!” Under the 1871 and 1967 standards, the Floyd family would have clear grounds to sue the officer. But today, in following the Howard v Fitzgerald ruling, any civil suit would be thrown out immediately.
Even in the numerous cases where Supreme Court justices have held that police officers acted egregiously and violated a citizen's constitutional rights, they have still refused to overturn or refine the qualified immunity doctrine.
In 2004, Malaika Brooks was asked to step out of her vehicle after receiving a speeding ticket. After Brooks explained to the officers that she was seven months pregnant, the police officers tased her three times in the thigh, arm, and neck, handcuffed her, and dragged her face down in the street. The Supreme Court agreed unanimously that the officers had violated her constitutional rights, but qualified immunity was still upheld.
In 2013, the police received a call about a man allegedly shooting his own mailbox with a firearm. Coincidentally, Gabriel Winzer, a mentally handicapped 25 year old, was riding his bike down the street, while carrying a toy gun. The officers shot him 17 times without warning, and then tased him as he died on the scene. The appeals courts agreed that the cops violated Winzer’s rights, but, once again, qualified immunity was upheld.
Tragically, there is case after case of further atrocious examples of victims' families failing to receive relief due to the application of qualified immunity. Revoking qualified immunity is not “anti-cop”, but rather allows the law to apply as intended, and allows families to hold officers responsible when they commit such egregious acts. When doctors commit malpractice, they are liable. Why should cops who clearly and maliciously violate constitutional rights be treated any differently?
Further, as a Republican, the phrase “deference towards government” always sends shivers down my spine. The benefit of the doubt should not be handed out simply because of someone’s position or title. Rather, both sides should plead their case and allow a court of law to weigh both arguments equally and make a ruling on the issue.. I, and almost all of my fellow Republicans, vehemently push back on the Chevron Doctrine for this very reason. Qualified immunity is just that: deference towards government officials.
Finally, it is important to recognize what qualified immunity does in its most basic sense: it gives government officials impunity to violate our constitutional rights. Our constitution is the basis of our entire country, and our rights outlined are so sacred to the very idea of our democracy. Although we must fight to ensure our rights are not violated in the first place, allowing a means of restitution through civil courts is a first step toward both deterrence and justice.
Rep. Amash’s Ending Qualified Immunity Act will once and for all restore the Civil Rights Act of 1871 to its original meaning. It will remove qualified immunity as a legal doctrine and allow citizens whose rights are violated to sue the government officials who violate them. While junk lawsuits are a valid concern, the courts and juries should be trusted to recognize and promptly dismiss them. Any automatic defenses simply provide ways for offenders to abuse the system and once again avoid accountability for the violations of our constitutional rights. Additionally, this liability would incentivize police departments to train their officers better, as they could be held liable when an officer abuses their authority.
This is an opportunity to begin to heal the deep wounds in our nation. No, revoking qualified immunity will not solve the ongoing policing problems that exist, and this will not suffice by itself. However, this is an easy, potentially tripartisan, step we can take. Rep. Amash’s Ending Qualified Immunity Act will once and for all revoke qualified immunity, and restore the law to its intended purpose. Let us join together and support this legislation to allow the victims’ families to hold the police accountable.