As TFTP has reported, when it comes to police accountability, one overarching question remains. ‘Do we want to live in a society whereby law enforcement officials can completely violate a person’s constitutional rights and get away with it?’ For our society to be free, the answer to that question must be a resounding, powerful, unwavering, ‘Hell No!’ Sadly, police in America who violate the rights of citizens currently enjoy this lack of accountability all thanks to the incredibly flawed legal doctrine of Qualified Immunity.
The Supreme Court created qualified immunity in 1982. With that novel invention, the court granted all government officials immunity for violating constitutional and civil rights unless the victims of those violations can show that the rights were “clearly established.”
The court held in Harlow v. Fitzgerald that government actors are entitled to this immunity due to the "need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.”
“Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
As Anya Bidwell points out, although innocuous sounding, the clearly established test is a legal obstacle nearly impossible to overcome. It requires a victim to identify an earlier decision by the Supreme Court, or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the official is immune. Whether the official’s actions are unconstitutional, intentional or malicious is irrelevant to the test.
As the following case illustrates, this doctrine is used to excuse the most heinous of behavior, even when if violates completely innocent women in utterly rapacious ways.
Angela Calloway has never been suspected of a crime, never arrested, and has never been to jail. She is, according to a lawsuit filed on her behalf, "completely innocent." She does, however, know someone behind bars.
When Calloway went to visit this person behind bars, she was subject to an utterly horrifying experience at the hands of prison guards. She was forced to strip down and remove her tampon from her vagina which was then inspected by officers before being thrown away.
Naturally, Calloway felt that her rights were violated — namely her 4th Amendment rights to be free from unreasonable search and seizure — so she filed a lawsuit against the federal prison in Virginia where her violation took place.
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This week, however, the U.S. Court of Appeals for the Fourth Circuit justified the search, ruling that forcing a completely innocent woman to strip down and pull out her tampon in front of police to inspect it — is A-Okay — even forcing her to squat, cough, and spread her butt cheeks.
Thank you qualified immunity. As Law and Crime points out, the decision was a bipartisan one as the judges who signed off on the ruling were George H.W. Bush-appointed Circuit Judge Paul V. Niemeyer and Bill Clinton-appointed Circuit Judge Robert Bruce King. The judges wrote in their opinion detailed the events of that day and noted they did not violate Calloway's rights:
[Angela] Calloway was escorted to a private office by two female officers, Sgt. Heidi Brown and Officer Heather Hale, who were told that Calloway had signed the strip-search consent form. When they reached the private office, Calloway informed the officers that she was menstruating, and so the three women relocated to a women’s restroom. Because the door to that restroom did not lock, Brown told Hale to stand at the door to ensure that no one entered. Brown explained the search procedure to Calloway and then had her remove her clothing one piece at a time, with each item being searched before another was removed. When Calloway had taken off all her clothes, she complied with Brown’s directions to lift her arms and breasts, open her mouth, and lean over and shake her hair. At Brown’s direction, Calloway next went into the bathroom stall and removed her tampon, which Brown inspected before disposing of it.
“Calloway then twice performed the ‘squat and cough’ maneuver, and, according to Calloway, she also spread her buttocks for the officers’ inspection,” the opinion continues. “When the search revealed no contraband, Calloway’s clothing was returned. She was also offered another tampon but stated that she did not need one.”
Remember, this woman was not a criminal and merely attempting to visit someone in jail, yet she was treated like a terrorist and completely humiliated — and thanks to qualified immunity, the court claimed this did not violate her rights.
A lone dissenting judge, James A. Wynn, completely disagreed, writing:
The officers accused Ms. Calloway of smuggling contraband, and they told her they had justification to “strip search” her. Two additional officers arrived and took Ms. Calloway into a bathroom, where one officer stood in front of the door and the other told Ms. Calloway to take off her clothing one article at a time. After Ms. Calloway completely undressed, the officers ordered her to twice squat and cough forcefully and to spread her buttocks for inspection of her anus. The officers also had Ms. Calloway remove her tampon from her vagina and give it to an officer. As it turned out, Ms. Calloway was completely innocent of the accusation—the officers found no contraband whatsoever.
To be clear, this is not the policy of the jail. Officers do not normally strip search and force women to remove their tampons. Calloway was singled out by one of the officers who initiated the entire horrifying experience — claiming she looked suspicious.
A system that justifies treating innocent women like this, regardless of some officer's hunch, is inherently sick and in need of serious reform. Sadly, however, all the push generated over the summer of 2020 to reform this system has fizzled out as the new Commander in Chief puts half the country back to sleep.