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Abolish Qualified Immunity

Qualified immunity is the legal doctrine with deep roots in white supremacy and the Jim Crow era that allows police to get away with wanton brutality over and over again. It’s time to abolish qualified immunity.

Demonstrators participate in a protest against police brutality on June 14, 2020 in Miami, Florida. Joe Raedle / Getty

On a Thursday evening in July 2016, twenty-year-old Shase Howse was making a short round trip to a convenience store a block away from his home when a police officer stopped and frisked him. Shase lived in Glenville, a black neighborhood on the east side of Cleveland, Ohio, with his mother. He eventually made it back to his house — or at least to his porch. Shase was on the phone with his mom, who was out for a bike ride around the neighborhood, and he was searching his pocket for his keys when multiple plainclothes police officers pulled up in an unmarked car.

They asked him if he lived in the house. He said yes. They asked again and he said, “Yes, what the fuck?” They told him he had a “smart mouth and a bad attitude.”

I will leave the details of what happened next to be read in the words of Shase and his mother. In short, the police charged the porch and then tackled, beat, and arrested Shase. His mother heard this happening over the phone, rushed home, and pleaded with them to stop. The officers took Shase to the Cleveland City Jail, where he was held over the weekend. His mother borrowed money to pay his $1,000 bail bond.

What was Shase charged with? Felony assault of a police officer.

The prosecutor asked Shase to plead guilty to the multiple felony counts. He refused and hired a lawyer, and the prosecutor eventually dropped the charges. Shase then sued the officers in federal court for excessive force — and lost.

It’s a story we have heard over and over again: police stop, frisk, arrest, beat, and kill black people with impunity. This is not an accident. The law is designed, with specific statutes and judicial doctrines, to protect police from accountability for their brutal violence. The Supreme Court gradually and consciously developed those doctrines over the course of decades.

One of them, which the courts used to throw out Shase’s lawsuit, is in the spotlight today: qualified immunity. Qualified immunity, in the words of the appellate court that ruled against Shase, “shields law enforcement officers from civil liability” unless they violated a “clearly established” right.

What does that mean in practice? Qualified immunity protects police who open fire against orders to wait, sic a dog on a person who has surrendered, shoot a calm and nonviolent person holding a kitchen knife at their side, arrest a seventh grader for making fake burping noises in class, and, as we have seen, beat and arrest a person standing on their porch. There are new bills pending in Congress to eliminate qualified immunity in most cases. And while the Supreme Court recently declined to reevaluate it (to the disappointment of Justice Clarence Thomas, a skeptic), the chance will arise again soon.

We should move on these openings and abolish qualified immunity.

Qualified Immunity in Practice

Let’s look at how the doctrine works. The “clearly established” standard of qualified immunity means that even if the police violate your rights, you cannot sue them unless there is specific precedent (such as a previous case) showing that they acted unlawfully.

Even if this seems reasonable in theory, the Supreme Court has made it practically impossible to find such a precedent. It requires lower courts to apply the “clearly established” standard in a restrictive way. As Justice Sonia Sotomayor explained in a dissent, the Supreme Court effectively requires a “factually identical case” as precedent for the standard to be met. A Reuters investigation on qualified immunity summarized what that means:

Courts have sided with police because of the difference between subduing a woman for walking away from an officer, and subduing a woman for refusing to end a phone call; between shooting at a dog and instead hitting a child, and shooting at a truck and hitting a passenger; and between unleashing a police dog to bite a motionless suspect in a bushy ravine, and unleashing a police dog to bite a compliant suspect in a canal in the woods.

And there’s another problem. Per Supreme Court guidance, lower courts often grant immunity to police officers without addressing the underlying rights violation. This means that precedent is not created for future cases. So even if your rights were violated, that may not be “clearly established” for the next person. This effectively creates, as Sotomayor put it, an “absolute shield” out of a nominally “qualified” immunity, and the Supreme Court regularly reverses lower court decisions that don’t toe the line.

All that being said, we can understand the overall doctrine of qualified immunity without getting lost in the legal weeds of the “clearly established” standard. In fact, fixating on the details can distract us from the larger issue of how far the legal system goes to condone violent police. Qualified immunity is shockingly broad, but the courts routinely bend and break even those standards in order to protect the police.

Consider what happened to Shase. He was standing on his porch, at his home, on his property. The right to do so is “clearly established” — it is nearly verbatim in the Fourth Amendment, which protects “the right of the people to be secure in their persons [and] houses.” The police accused Shase of “resisting arrest” (hence the assault charges) by taking a “fighting stance” when they approached and “kicking his legs” when they tackled him. But this was after the police trespassed on Shase’s property, violating the Fourth Amendment.

So what did the courts do? They simply ignored this fact and this fundamental constitutional right in their analysis of qualified immunity and granted it to the officers. Only one dissenting judge pointed this out, though it would have been obvious to any first-year law student.

But while this decision technically “misapplies the law,” as Sotomayor wrote, it does functionally apply qualified immunity. Racism, not lofty legal principle, is at the root of this doctrine. If present-day evidence of the courts condoning police violence isn’t enough, history makes it very clear. The Supreme Court created the doctrine in the 1960s under very telling circumstances: when it ruled on a lawsuit against the police brought by Freedom Riders in Jackson, Mississippi.

Breaching the Peace

On September 13, 1961, Jackson police arrested, for the thirty-seventh time, a group of Freedom Riders. These were multiracial groups of activists who challenged transportation segregation laws by traveling together in the South.

This time, it was fifteen clergymen, members of the Atlanta-based Episcopal Society for Cultural and Racial Unity. With tickets to Chattanooga in hand, they passed the “White Waiting Room Only” sign at the Jackson Trailways Bus Terminal and found police waiting for them. When asked later if he “believe[d] it is wrong for whites and Negroes to be together in a bus station,” one of the officers replied: “I believe it is wrong for them to be together anywhere.”

The ministers were charged with breaching the peace, jailed for two days in segregated cells, convicted by a municipal judge, and then jailed for several more days (one of them for several more weeks) until they paid an appeal bond of $500 each.

The ministers and other Freedom Riders, notably, were not charged with violating Mississippi’s transportation segregation laws. The federal government had declared such laws illegal. But it wasn’t enforcing this declaration, and as part of that unspoken truce, the segregationists wanted to avoid a direct confrontation. Instead, they used the “breach of the peace” statute, which had a more respectable law-and-order veneer.

But clearly, the ministers had not breached the peace (unless saying a prayer counts). Moreover, the Supreme Court later said it was unconstitutional to apply this statute to Freedom Riders. And the officers were clearly trying to enforce illegal segregation laws.

So, could they be sued for false arrest? And, more important, could they be sued in federal court? As one justice put it when the ministers’ lawsuit reached the Supreme Court, “state courts have been instruments of suppression of civil rights.” The answer was yes, the ministers could access the federal courts. They used the same pathway that thousands of other victims of police violence (including Shase) have used since: section 1983 of the Civil Rights Act of 1871.

This statute was passed to help enforce the Fourteenth Amendment in the South during Reconstruction. It states that “every person who, under color of [state law]” violates someone’s rights (generally, those guaranteed by the Bill of Rights) “shall be liable.” S1983 was not used much for many decades, however, until the Supreme Court’s 1961 decision in Monroe v. Pape confirmed what its language meant.

According to Monroe, S1983 created the right to sue state officials who use their power (i.e., “under color of [state law]”) to violate federal rights. Looking at it historically, the court noted that many states during Reconstruction were “unable or unwilling” to protect black people against Ku Klux Klan terror and other attacks on their rights. So Congress passed S1983 to provide access to the federal courts to hold state officials responsible. Monroe involved an S1983 lawsuit brought by a black family in Chicago who were subjected to a terrifying police raid. The family’s success in Monroe opened the federal courthouse doors to more civil rights lawsuits.

With S1983 and the Monroe decision, the Freedom Rider ministers seemed to have a solid case. But the Supreme Court’s 1967 Pierson v. Ray decision on their lawsuit introduced a new obstacle: the progenitor of qualified immunity, “the defense of good faith.” If the police “acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid,” then they were not liable for false arrest.

In other words, the ministers were arrested in 1961, before the breach of the peace statute was declared unconstitutional in 1965. So the good faith defense would be on the table at the ministers’ trial against the officers and in future S1983 lawsuits.

Law-and-Order Politics

Recall that S1983 used absolute language like “every person” and “shall be liable.” It did not provide any exceptions. So why did the Supreme Court create an exception with the good faith defense?

The so-called Warren Court of Brown v. Board of Education and the 1960s had a mixed relationship with racism and civil rights. Especially toward the end of the decade, the court began embracing “law and order” politics. These politics, as Michelle Alexander argues in The New Jim Crow, fueled the rise of the racist mass incarceration system we live under today.

Pierson, for example, was an 8-1 decision in 1967, and it was written by the famous chief justice Earl Warren. Warren wrote another 8-1 decision the following year, in Terry v. Ohio. Terry upheld a white police officer’s stop-and-frisk of two black men standing on a street corner, beginning a slippery slope to today’s widely criticized police stop-and-frisk practices. The one dissenter in both cases was Justice William O. Douglas, who wrote the 1961 Monroe decision that began the decade — that was also 8-1.

Borrowing Michelle Alexander’s framework, Pierson and Terry were two of “the seeds of the new system of control — mass incarceration” — that were “planted during the Civil Rights Movement itself, when it became clear that the old caste system was crumbling and a new one would have to take its place.” Alexander masterfully illustrates how, in the ensuing decades, the Supreme Court’s case law sidelined constitutional protections that would have “interfere[d] with the prosecution of the War on Drugs.” Qualified immunity, as it grew out of Pierson, is part of that case law.

This is not just a matter of one civil rights case from the 1960s. As the country wrestled with abuses of government power in the ensuing decades, the Supreme Court responded by strengthening qualified immunity. It first used the phrase “qualified immunity” when ruling on an S1983 lawsuit over the Kent State shootings of anti–Vietnam War protesters. It created the “clearly established” standard in a case where the Nixon administration fired a whistleblower who testified about military cost overruns.

In other words, we shouldn’t miss the forest for the trees. The political motivations for qualified immunity are more important than its legal details, and those politics are still with us. Malcolm X said:

Every case of police brutality against a Negro follows the same pattern. They attack you, bust you all upside your mouth, and then take you to court and charge you with assault. What kind of democracy is that? What kind of freedom is that? What kind of social or political system is it when a Black man has no voice in court?

Malcolm X spoke these words more than half a century ago, but he presciently described exactly what happened to Shase Howse. Malcolm indicted this “American justice” as “hypocrisy.” Abolishing qualified immunity would be a step toward ending that hypocrisy.