U.S. Congress: end immunity for criminal cops!

The murder of George Floyd in Minneapolis police custody has galvanised a global public outcry against systemic racism and police brutality. Many have gone as far as to demand the immediate defunding and abolishing of the police. 

In order to understand how abuse of people of colour has become so endemic among police forces, and in order to bring this phenomenon to an end, it is important to investigate the notion of qualified immunity and support the efforts to obliterate it.

The roots of qualified immunity

In 1967, the Supreme Court decided that Mississippi police officers who used excessive force against civil rights protesters should not be held accountable for their actions due to what the court articulated as “qualified immunity”. According to this notion, government actors are not liable for mistakes they make while enforcing the law had they done so “in good faith and with probable cause.”  This vague definition had already created challenges for plaintiffs suing police officers who violated their constitutional rights and abused them.

But matters complicated even further when fifteen years later the court expanded its definition of qualified immunity, arguing that even police officers who did not violate people’s rights or use excessive force in “good faith” could enjoy immunity as long as they did not violate a “clearly established” right of the victim. By “clearly established” the court referred to instances that were previously brought before a court and involved the same “specific context” and “particular conduct” on the part of the government actor. 

In other words, the court ruled that in the absence of a legal precedence in a case involving the exact same circumstances and in which the police officer’s actions were identical to ones that were deemed unlawful in a previous ruling: the victim’s complaint will be dismissed. And since no case is ever exactly identical, police officers were being effectively relieved of responsibility for their actions, no matter how heinous. 

Police brutality gets a free pass

The concept of qualified immunity has trickled down to lower courts over the years, and has created a reality in which police officers were effectively given a free pass to act as they pleased.

As stated by the liberal-leaning Supreme Court Justice Sonia Sotomayor, the notion of qualified immunity  is “sanctioning a ‘shoot first, think later’ approach to policing” that deprives people from their constitutional rights. 

In 2004, for instance, two Seattle police officers were granted immunity after violently dragging and repeatedly tasing a seven-month pregnant woman who refused to sign a speeding ticket. Although the judges in this case recognised that the officers had used excessive force against a vulnerable person who posed no threat to them, they nonetheless dismissed the case, arguing that no “clearly established” right of the victim had been violated. 

The same decision was rendered last year, when the U.S. Court of Appeals for the Ninth Circuit ruled that officers who attempted to steal $250,000 during a house search were immune from culpability seeing as there was no “clearly established” legal precedent for such circumstances.

The same reasoning was used by a federal appeals court to dismiss the case against police officers who shot, tased, and killed 25-year-old mentally disabled Gabriel Winzer as he was passing by on a bike with a toy gun. “We cannot conclude that Gabriel’s right to be free from excessive force was clearly established here,” the judges ruled. 

These are, unfortunately, merely few of countless cases in which the concept of qualified immunity has excused, and arguably encouraged, instances of police brutality ranging from abuse to homicide.

The official justification behind the institution and implementation of qualified immunity was to avoid a situation in which law enforcement agents are hesitant to do their jobs properly and prevent them from having to get mired down in costly legal battles over minor infractions. But the circumstances under which this concept had been conceived and the steadfast resistance of the authorities to dismantle it even in the face of such egregious and disproportionate police violence against communities of colour demonstrate that qualified immunity’s greatest function is to uphold systemic racism. 

Calls to end qualified immunity gain momentum

Over the years, countless attempts were made to terminate the shielding of police officers from accountability through qualified immunity. The recent wave of protests in the wake of George Floyd’s killing contribute to a growing momentum to dismantle this legal concept. 

Numerous cases seeking to challenge qualified immunity are currently pending deliberation at the Supreme Court. Additionally, a growing number of lawmakers presented or supported legislation that tackles police impunity. 

On 3 June, Senators Edward J. Markey (D-MA), Cory Booker (D-NJ), and Kamala Harris (D-CA) introduced a Senate resolution to abolish qualified immunity and hold officers accountable for police brutality. 

Meanwhile, Congressman Justin Amash, an independent from Michigan, is introducing the "Ending Qualified Immunity Act" in Congress. A Change.org petition was recently launched in order to pressure congress members to support Amash’s resolution and vote in favour of it. 

“Government actors should not be held to less of a standard than the general public, they should be held to an even higher standard because of the power they hold,” the petition's authors remark, adding that while qualified immunity is merely part of a much larger phenomenon of systemic racism; it is nonetheless a critical component of it. 

Please consider signing the petition and, if you are in the U.S., contacting your local representatives to voice your support for the resolution.