When George Floyd was killed in May, the nation was shaken out of its slumber in regard to police brutality in this country. Cities quite literally burned over the anger that has been boiling up over decades as cops kill people — who are often innocent, unarmed, and even children — and get away with it. Sadly, however, the organized groups behind the protests only appear to be pushing a single, partial solution of “defunding” the police. While this is certainly something to be considered, it is a bandaid on sucking chest wound. To strike the root of the problem, we need bad cops held accountable. One major way to do this is by ending Qualified Immunity. Luckily, this idea is now picking up steam.
This month, U.S. District Court Judge Carlton Reeves filed a 72-page opinion blasting qualified immunity which has given countless bad cops a pass all based on a severely flawed doctrine.
As Truthout reports:
In Jamison v. McClendon, U.S. District Court Judge Carlton Reeves recently concluded that Officer Nick McClendon violated Clarence Jamison’s Fourth Amendment rights when he subjected Jamison to a nearly two-hour ordeal that included badgering, pressuring, lying and intrusively searching his car. But the judge’s hands were tied by the qualified immunity doctrine so he was forced to deny Jamison’s legal claim. Reeves, an African American man, traced the development of the law and the institutional racism and police brutality that continue to plague our society. “Black people in this country are acutely aware of the danger traffic stops pose to Black lives,” the judge wrote.
Jamison was entirely innocent, but police lied, manipulated, and violated his rights in a futile search for non-existent drugs. His life could’ve been ruined or even ended over the false allegations which is why he filed a lawsuit afterward.
But thanks to the doctrine of qualified immunity, Jamison was told to kick rocks. This is in spite of the fact that McClendon was found to have actually violated the man’s rights.
Reeves determined that McClendon’s search of Jamison’s car violated the Fourth Amendment, which prohibits unreasonable searches and seizures. Nevertheless, Reeves was legally bound to rule against Jamison because of the qualified immunity defense.
“[J]udges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing,” Reeves wrote. “The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.” However, he added, “[i]mmunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.”
Now, Reeves has made it is personal mission to abolish this tyrannical doctrine.
“[A]s people marching in the streets remind us today, some have always stood up to face our nation’s failings and remind us that ‘we cannot be patient,’” he wrote. “Through their efforts we become ever more perfect.” Reeves cited Congressman John Lewis, who “stared down the racists of his era when he marched over the Edmund Pettus Bridge.” He mentioned the Supreme Court’s landmark decision in Brown v. Board of Education, which abolished the doctrine of “separate but equal.” Reeves wrote, “The question of today is whether the Supreme Court will rise to the occasion and do the same with qualified immunity.”
Truthout explains that since qualified immunity is a court-made rule, the courts could abolish it. Although the Supreme Court declined to review the doctrine in the last term, the abolition of qualified immunity in Colorado state courts, together with Reeves’s comprehensive condemnation of it, may well lead the high court to reconsider the endurance of qualified immunity in its next term.
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!’
Unfortunately, however, this is the case most of the time thanks to law enforcement personnel’s use and abuse 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.”
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.
On top of the case above, another example of this would be the family of George Floyd attempting to seek compensation for his death. Because there has never been a “clearly established” case of a cop kneeling on a man’s neck until he dies being declared unconstitutional, a judge in Minnesota could easily dismiss their case.
It is essentially a get out of jail free card for cops and it perpetuates the problem of police violence by giving bad cops a free pass.
Steps like this in Mississippi are essential to reining in the terror of bad cops. This is why everyone needs to call their representatives and tell them to support the bill proposed by Libertarian Congressman Justin Amash (L-Michigan), H.R. 7085 which will end Qualified Immunity on a national level.
“Qualified immunity protects police and other officials from consequences even for horrific rights abuses,” said Amash. “It prevents accountability for the ‘bad apples’ and undermines the public’s faith in law enforcement. It’s at odds with the text of the law and the intent of Congress, and it ultimately leaves Americans’ rights without appropriate protection. Members of Congress have a duty to ensure government officials can be held accountable for violating Americans’ rights, and ending qualified immunity is a crucial part of that.”
If you are interested in the other paradigm shifting solutions into quelling police brutality and Americans’ deprivation of rights, we propose five major solutions, including Qualified Immunity, that will have drastic changes. You can read that here.