Greetings to my readers.
I want to make three points in this blog post for conscientious consideration. Before I make my points, I provide a definition of the term “qualified immunity” and a synopsis on how it works.
Qualified immunity is a legal doctrine that “protects public officials from being sued for damages unless they violated ‘clearly established’ law of which a reasonable official in his position would have known; it aims to protect civil servants from the fear of litigation in performing discretionary functions entrusted to them by law”.
Additionally, there is a two-part legal analysis or test when applying qualified immunity to specific cases: (1) Was the law governing the official’s conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?” Government officials performing discretionary functions generally are shielded from liability for civil damages as long as as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”.
Source of qualified immunity information: https://definitions.uslegal.com/q/qualified-immunity/
Elaborating deeper on how qualified immunity specifically protects police officers who engage in malfeasance, excessive force, and abuse of their powers, the law creates a legal obstacle that is very difficult to overcome for the victims or the families of victims of unwarranted and unjustified use of excessive force on unarmed citizens that leads to injury, grave injury, or death.
According to an opinion piece in USA Today written by Patrick Jaicomo and Anya Bidwell, the Supreme Court created qualified immunity in 1982 and the law requires a victim of police malfeasance or brutality “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 such precedent exists, the official is immune; whether the official’s actions are unconstitutional, intentional, or malicious is irrelevant to the test” (Jaicomo,Bidwell 2020)
We the people should unite to demand that qualified immunity be overturned forthwith. I proffer three reasons why:
1. Qualified immunity is unconstitutional in its effect.
While this law is meant to shield law enforcement and other government officials from the frivolous lawsuits that often result from the lawful execution of their official duties, it is effectively protecting corrupt officials from reprisals for their unlawful and/or unconstitutional conduct while in office or in the execution of their duties.
Qualified immunity is effectively undermining the constitutional rights of citizens in ways the law likely never intended. For those confused as to how the officer who killed Tamir Rice, or the officer who killed Eric Garner with a chokehold, or the beating of Kelly Thomas in Fullerton, California by six police officers (whom the district attorney declined to prosecute and remain in their jobs), never faced any serious legal jeopardy, now you know why.
2. Qualified immunity actually harms the very officials and institutions it is meant to protect.
A National Review article on qualified immunity cites an amicus brief written jointly by the Alliance Defending Freedom, the American Civil Liberties Union Foundation, the Second Amendment Foundation, the Reason Foundation, the National Police Accountability Project, and Public Justice (among others). The central point of the brief is that qualified immunity eroded the public’s trust in its institutions and in the officials who represent them (French, 2018)
This dynamic makes it difficult for public officials in general and law enforcement officials in particular to get the cooperation of the public when needed due to this distrust of a system that prioritizes the protection of even corrupt officials over the rights of the people.
For those confused as to why some people choose to riot rather than peacefully petition for a redress of grievances, qualified immunity is a major reason why.
3. Qualified immunity does not just impact ethnic minorities or the poor, it impacts every American.
While a black male is 2.5 times more likely to be shot by police while unarmed, there are more unarmed whites killed by police in terms of raw numbers (Swaine, Laughland, Larty, 2015)
In most cases, the officers involved are never charged or prosecuted even in cases where incompetence or outright unlawful behavior contributed to the death of a citizen.
The link below outlines 15 shocking instances where police officers literally got away with murder:
The point I make here is that qualified immunity is not just a problem for black Americans, it is a problem for all of us.
CONCLUSION: I think it is safe to say most Americans are unaware that qualified immunity is even a law, and that is the most unsettling thought of all.
I often cite the famous Martin Luther King, Jr. quote on sincere ignorance and conscientious stupidity. It is obvious that both of those things are in play with regard to qualified immunity and it is time for that to end or we will remain in this constant loop of police malfeasance leading to the senseless deaths of citizens and civil unrest in perpetuity.
-The Rational Ram