Unqualified Impunity

That’s what you get when you protect police officers with qualified immunity.

In the last few days, we have seen protests spring up in 45 cities across the country over the needless death of George Floyd at the hands of the police. Floyd’s death is yet another in a long, long history of police brutality. While I don’t agree with the violence and the property damage arising from the protests, I believe that peaceful protests are a reasonable response to law enforcement abuses when they are not held to account.

Floyd’s family has little reason to believe that justice will be served. According to Vox, police are half as likely to be convicted and incarcerated as a citizen. Sure, the lives of the four police officers may be detoured as a result of their indiscretions. But they’re still living. George Floyd is not.

I found at least 3 articles directly addressing what appears to be the root cause of police brutality: a clear disconnect between accountability and performance of duty. All three articles were published within the last 3 days and all of them home in on one simple point: in general, government officials and the police specifically, are not being held accountable when they deprive someone of their rights.

What kinds of condition prevents people from holding government officials accountable? Qualified immunity. Qualified Immunity is a concept that requires courts to follow a ruling from previous cases of police brutality (or other official misbehavior) in order to find for convicting a public employee of wrongdoing. The barrier to a conviction for a crime for government employees and officials is far, far higher than what most ordinary citizens would be subjected to. USAToday succinctly describes the reason why Floyd’s family has little reason to expect justice:

[W]hen Floyd’s family goes to court to hold the officers liable for their actions, a judge in Minnesota may very well dismiss their claims. Not because the officers didn’t do anything wrong, but because there isn’t a case from the 8th Circuit U.S. Court of Appeals or the Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for nearly nine minutes until he loses consciousness and then dies.

There is a line of reasoning that I follow when observing malfeasance among government employees. All power derives from the governed, The People. Certain powers are delegated to the government by The People, and certain other powers are retained by The People. A government employee that performs an act that has not been delegated to him or her by The People, is acting in his or her own personal capacity. To put it bluntly, when a police officer deprives a citizen of life, liberty, and the pursuit of happiness, that police officer is personally liable for the harm he caused to someone else. I think most people would agree with that line of reasoning.

Except certain conservatives. Some conservatives like to talk a good game about personal responsibility and accountability. They love originalism and strict interpretations of the Constitution. I hear it in their speeches on the floor of Congress. I hear it in their stump speeches on the campaign trail. I see it in their tough on crime legislation. But when some conservatives talk about “police” and “accountability” (two words that are difficult to find in one sentence from them), as an article at The Bulwark noticed, they do something different:

In their preference for a more forgiving policy that gives police and other government officials substantial leeway in the exercise of discretion, they abandon their stated commitment to textualism and embrace an “interpretation” of Section 1983 that is utterly divorced from its text. The vehicle for this conservative brand of what we might call “living statutory interpretivism” is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of “any rights” — as Congress expressly provided — but rather the deprivation of any “clearly established” rights.

Wow. I thought only liberals engaged in judicial activism. Clearly, conservatives love judicial activism so long as it supports their pet causes. Conservatives tend to be older, more established and have acquired some wealth. You know, if I was a millionaire or a billionaire, I might prefer that the police have greater discretion in the performance of their duties. I might even buy some influence to ensure that there is enough room for the broad discretion I’d want the police to have. Can’t we just let it slide when a police officer presses his knee on a man’s neck until he becomes unresponsive? He just made a mistake, right? That’s qualified immunity.

Qualified immunity is not getting much air on social media. I’ve been spreading the #endqualifiedimmunitynow hashtag when I can of late. If we use the police to hold other people accountable, and we want them to do that, we also want the police to be held accountable when they deprive a person of the right to life. Oh, yeah. The right to life.

Reason magazine has noted that 13 cases have made their way to the Supreme Court for consideration of the issue of qualified immunity. They say that on Monday, the highest court in the land will have a chance to end qualified immunity for police officers and government officials who like to treat the government as if it were their own business like a certain president I know. They also note that odds are rather low that the Supreme Court will change course. To wit:

But the Supreme Court is, to understate it, reluctant to second-guess police. As the Cato Institute’s Clark Neilly noted this week, the Court “recently let stand an Eighth Circuit decision dismissing, on qualified immunity grounds, a Section 1983 case against a Nebraska officer who picked up a five-​foot-tall, unarmed woman clad only in a bathing suit and drove her head-​first into the ground, knocking her unconscious and breaking her collarbone — not because it was lawful for him to do so, but rather because there happened to be no case on point with precisely those facts.”

Reason Magazine also notes that short of an unambiguous Supreme Court ruling, an enormous amount of political will is required to overturn decades of court rulings and what has become a tradition with the police, and put an end to unqualified impunity. It should be noted that the conservative movement has been very, very organized in the last four decades. They have provided an enormous amount of support to bring about the conditions we face now.

It is time to acknowledge the hypocrisy of qualified immunity and finally make public officials responsible for the harm that they cause. In cases of police brutality, the harm done is clear. In every case of police brutality that I’ve seen, the victim is unarmed and outmatched — the balance of power is not even close to being fair. That imbalance of power is why the police can be brutal.

Now I’m not saying that all cops are bad cops. There are plenty of great men and women who serve our communities all over the nation. I just think that the bad cops, the cops with unresolved issues with their parents, the cops who have not worked out the abuse they sustained at the hands of others when they were young (they learned to abuse people from someone, somewhere), they need to know that there are limits to what they can do to those they serve.

So maybe a few bankrupted or imprisoned police officers will help to set an example to others who may be tempted to stray from the clear limits of their power. It might be a steep learning curve for the police, but for most of us, physical abuse of a person is an abuse of the power delegated to a police officer.

This isn’t a video game, officer. This is our life. We would like to know that we’re safe in your presence.

Write on.

Written by

Husband, father, worker, philosopher, and observer. Plumbing the depths of consciousness to find the spring of happiness. Write on.

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