Qualified immunity must end

Opinion by Yasmeena Khan
June 19, 2020, 9:09 p.m.

On June 8, 2020, Congressional Democrats introduced a sweeping set of legislative reforms in the bill H.R. 7120, called the “Justice in Policing Act of 2020,” which aims to address some of the most egregious ills that contribute to the violence the Black community faces at the hands of police. The push for the bill is being led by four Congressional Democrats: Rep. Karen Bass (D, CA-37), Rep. Jerrold Nadler (D, NY-10), Sen. Cory Booker (D-N.J.) and Sen. Kamala Harris (D-CA). 

While the bill deals with multiple concerns, this op-ed will focus on the specific call for qualified immunity reform. Qualified immunity is the famous legal doctrine in the United States that protects government officials from being held accountable for their actions unless their actions violated “clearly established” case law. 

In order to understand this specific section of the bill, it is essential to know the history behind qualified immunity — a doctrine entirely designed to shield police from facing repercussions for their misconduct. Two famous Supreme Court cases — Pierson v. Ray (1967) and Harlow v. Fitzgerald (1982) — created the basis for the law as it stands today. 

Pierson v. Ray established immunity for officers. In the case, a group of black clergymen peacefully entered a “whites only” bus terminal and were arrested and charged with “conduct breaching the peace.” Another case, Thomas v. Mississippi (1965), held a similar arrest unconstitutional, as by 1967 segregation had already been deemed unlawful. In this vein, one of the arrested ministers brought a suit against the police officers who had arrested him, arguing that the police officers had violated his constitutional right to not be deprived of a privilege due to the color of his skin — an already accepted law. In summary, his argument was that the officers had violated his constitutional rights by arresting him when he had not broken any laws. The Supreme Court ruled against the minister, however, claiming it was not the responsibility of the officers to know if their actions were constitutional, so long as the officers were acting in “good faith” — i.e. they believed their actions were lawful. (See Evan Bernick’s further summary for Georgetown Law). 

The modern standard for qualified immunity, however, comes from Harlow v. Fitzgerald  in 1982. The case was in response to the ongoing scandal of President Richard Nixon and Watergate, where a whistleblower aide learned through the release of the Watergate tapes that Nixon had fired him in retaliation for testimony against the president. Officials involved in the aide’s firing claimed absolute immunity — they argued they could not be held liable as they were acting in an official capacity. In an 8-1 decision, the Supreme Court stated that government officials, if performing official duties, are shielded from liability if their actions do not violate known constitutional law that a reasonable person would know of — “qualified” as opposed to “absolute” immunity. In short, officers cannot be held responsible if there is not established case precedent that their actions are illegal. This is the modern standard for qualified immunity, and it is what is currently accepted today. 

All of these cases serve as exceptions to the important 1871 civil rights statute, titled “Section 1983,” which gives citizens the right to sue government and law enforcement officials if those officers violate their constitutional or federal rights. But under qualified immunity, to win a case under Section 1983, one has to prove that said officers violated a clearly established federal law, which usually requires case precedent that describes their specific actions as unlawful. 

What does this mean in practice, and particularly for the police? As the New York Times put it, qualified immunity “has effectively created a Catch-22 paradox in constitutional law: Where a precedent doesn’t exist, a court can punt on the question of whether a cop broke the law, which in turn ensures that a precedent doesn’t get set.” What this means is that if there is not a case on the books with precisely the facts of the case being debated, the officer is not found to have violated clearly established law, and so cannot be held liable. 

A truly disturbing example of this comes from a USAToday article, which recounts the case of a police officer who pepper-sprayed an inmate in his locked cell for no reason, but was found to not violate “clearly established” law because other similar cases that had been cited included beating and tasing inmates for no reason, not technically pepper-spraying them. So, there still exists to this day no precedent for unlawfully and randomly pepper-spraying someone — unless of course you’re a civilian, in which case it’s assault or battery.

Qualified immunity is a farce. It’s a evasion tactic given to police, suggesting that unlawful conduct is only unlawful when there’s direct case precedent. It shouldn’t take a civilian case for someone to know that pepper-spraying without provocation is assault and police officers should be held responsible for that just the same as any other citizen, not to mention the cases that include murder. Under qualified immunity, George Floyd’s killer will not be found responsible unless there is clear case precedent that kneeling on someone’s neck is unlawful, a case that may or may not exist. Yet a common citizen who performed the same act would almost certainly be found guilty of murder or manslaughter. Why should we hold the police to a different standard?

The Justice in Policing Act of 2020 is one of the first and only bills to try and address one of the most egregious ills that continues to defend police officers from criminal liability, even if their actions are unquestionably illegal for any normal citizen. While passing the Justice in Policing Act of 2020 is a difficult political hurdle and certainly, even if passed, will not solve nearly all the problems in law enforcement, it’s a small but essential step towards justice, so that the killers of George Floyd, Breonna Taylor, Tony McDade and countless others can be tried and punished for their crimes.

Find your senators and House representatives here, and call, text and email to ensure their support for this bill. Sen. Tim Scott (R-S.C.) has already declared that ending qualified immunity is a “poison pill” in the bill, something President Trump will never support, and law enforcement unions will not allow a bill to pass with such a condition (see CBS article). Law enforcement unions and President Trump should not have the power to decide what police officers are held accountable for — that is the responsibility of the people. Destroying the qualified immunity doctrine is a small movement in the right direction, and something we can all work together to accomplish. 

Contact Yasmeena Khan at yrkhan ‘at’ stanford.edu.

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