The Supreme Court Broke Police Accountability. Now It Has the Chance to Fix It
by Mark Joseph Stern / May 27, 2020

“The video of George Floyd’s death that emerged on Tuesday is both shocking and distressingly familiar. Floyd, a 46-year-old black man, is lying on the ground as a white police officer pins him to the ground by the neck. We hear Floyd begging the officer to stop, telling him repeatedly: “I cannot breathe.” But the officer does not let up, and his colleagues taunt Floyd as he dies. “You having fun?” one asks. “You a tough guy,” another says. “Tough guy, huh?” After killing Floyd, the officers falsely claimed he had “physically resisted officers,” necessitating their brutal response.

We’ve seen this before, over and over and over again: police officers, usually white, killing black people who pose no threat to their safety. Although we have only recently begun to witness these executions ourselves thanks to smartphones, they are not a new phenomenon. For as long as law enforcement has existed in the United States, white officers have murdered black people.

After the Civil War, Congress sought to address the problem by letting victims and their families sue abusive government officials. But the Supreme Court has butchered that law to prevent countless victims of police brutality from seeking justice through one of the only state-sanctioned avenues available to them. At their conference on Thursday, the justices will have an opportunity to begin unraveling the catastrophic case law that allows so many officers—including, apparently, Floyd’s killers—to murder civilians with impunity. The court has an obligation to fix what it broke.

Although the Constitution bars government officials from engaging in race discrimination, conducting unreasonable searches and seizures, or taking someone’s life without due process, those guarantees do not enforce themselves. Congress recognized this problem during Reconstruction, when Southern state officials refused to protect newly freed black citizens, instead colluding with white civilians to terrorize them. In response, Congress passed three Enforcement Acts, which, among other things, allowed individuals to sue state officials who violate their civil rights in federal court. That provision, now known as Section 1983, provides the basis for most federal lawsuits against state police officers.

Under the Supreme Court’s current interpretation of Section 1983, however, it is not enough for victims to prove a violation of some constitutional right. They must also demonstrate that this right is “clearly established,” meaning a court has previously found that a very similar offense violated the Constitution.

If a victim cannot meet this burden, the state official receives “qualified immunity,” and the lawsuit fails. Notably, the words clearly established do not actually appear in Section 1983They are a gloss that SCOTUS imposed upon the law, a reflection of the justices’ personal belief that law enforcement needs wiggle room when making split-second decisions.

The addition of a “clearly established” requirement has transformed Section 1983 into a rubber stamp for egregious police misconduct. It is almost always possible for a judge to insist that a right is not “clearly established” because there is no precedent with the exact same facts. Two cases from 2017 illustrate the absurdity of this rule. In one, a court granted qualified immunity to Deputy Richard Sylvester, who shot a man to death in his own apartment for no reason. Why? The victim had no “clearly established” right not to be murdered in his home by a cop. In the other, a court granted qualified immunity to Officer Terence Garrison, who let his police dog maul a homeless man whom he knew to be innocent. The court explained that the victim had no “clearly established” right not to be randomly disfigured by a police dog.


For years, the Supreme Court has encouraged decisions like these by smacking down those few judges who dare to deny qualified immunity to police officers. Today, though, there is an emerging, cross-ideological consensus that the court’s jurisprudence here has spiraled out of control. Led by the libertarian Cato Institute, a broad coalition of progressive and libertarian groups has urged SCOTUS to reevaluate its qualified immunity precedent. They’ve gotten a boost from both Justice Sonia Sotomayor—who has condemned the “shoot first, think later” policing encouraged by the doctrine—and Justice Clarence Thomas, who has announced his desire to “reconsider our qualified immunity jurisprudence.” Nevertheless, a Reuters investigation found that lower courts have increasingly sided with police over victims in qualified immunity cases over the last decade.

The fight against out-of-control qualified immunity has produced a flood of appeals that force SCOTUS to confront the consequences of its own handiwork. On May 18, the court turned away three of these appeals, including a jaw-dropping case in which police were granted qualified immunity after literally stealing $225,000. (There is no clearly established right not to be robbed by cops, the court held.) But there are still 10 on the docket.

These cases include:
• Baxter v. Bracey, in which two officers received qualified immunity after siccing their police dog on a suspect who had surrendered and was sitting on the ground with his hands up.
• Corbitt v. Vickers, in which a police officer received qualified immunity after barging into a family’s yard, shooting a 10-year-old child who was lying on the ground, and attempting to shoot a docile dog who posed no threat.
• Cooper v. Flaig, in which police officers received qualified immunity after using a stun gun on an unarmed black man nine times while he was undergoing a mental health episode, killing him. The officers continued to stun the victim while he lay face down on the floor with his hands cuffed behind his back. They laughed as he died in front of them.

These cases show that George Floyd’s killing was not an aberration. And while the nation’s police brutality problem cannot be pinned solely on the Supreme Court, the justices have facilitated a law enforcement culture that tolerates extreme, even sadistic violence against civilians. The court’s qualified immunity jurisprudence tells cops across the country that they will not face consequences if they injure or kill someone for no good reason. As long as the police can concoct some rationalization for their conduct after the fact, courts will let them off the hook.

This is a mess of the Supreme Court’s own making. The justices invented the doctrine of qualified immunity, and they have a responsibility to abolish it. Floyd’s killing is a graphic example of the dangers posed by a police force that does not fear legal repercussions. The casualties of emboldened, unaccountable police forces are mounting.  It will only become harder for the courts to turn away families like Floyd’s.”

Will the Supreme Court End Qualified Immunity?
by C.J. Ciaramella / 5.29.2020

“The killing of George Floyd by a Minneapolis police officer on Monday has reignited calls for national reforms to policing, including ending qualified immunity, a legal doctrine that civil liberties groups say has become a shield for grotesque police misconduct. While some of the actions that criminal justice advocates are calling for—such as national use-of-force standards and limiting the power of police unions—would require large amounts of political capital, the issue of qualified immunity happens to be before the Supreme Court right now.

The Supreme Court could announce as early as Monday that it’s taking up several cases involving the doctrine. The Court considered 13 different petitions for cases involving qualified immunity at a conference hearing yesterday. Qualified immunity, created by the Supreme Court in the 1970s, shields police and other government officials from liability in civil rights lawsuits when the illegality of their actions was not “clearly established” at the time of the offense.

Attorneys representing the families of Floyd, Ahmaud Arbery, and Breonna Taylor called for policing reforms—including rolling back qualified immunity—at a press conference today. “The standard is far too high…for civil rights accountability for law enforcement officers,” attorney Lee Merritt said. He continued: “We need legislation that specifically goes after qualified immunity and the additional protections offered to law enforcement officers…We want to make sure that the laws from a federal level, number one, that these cases are no longer handled solely locally, but that the federal government will be asked to come in in each of these cases or these states will be denied federal funds.” The petitions before the Supreme Court have attracted amicus briefs from a notable range of groups, including the Reason Foundation (the nonprofit that publishes this website), the Cato Institute, and the American Civil Liberties Union (ACLU).

While it may seem like George Floyd’s right to not be choked to death by a police officer would be rather obvious, the fuzzy phrase “clearly established” has evolved over time to become a pedantic and unforgiving standard. Plaintiffs are often required to go fishing for cases that match their exact circumstances, lest their lawsuit get tossed. Last year, a 9th Circuit Court of Appeals panel granted qualified immunity to an officer who, without warning, shot a 15-year-old holding an airsoft gun.  “Under the circumstances, a rational finder of fact could find that [Officer Michael] Gutierrez’s use of deadly force shocked the conscience and was unconstitutional under the Fourteenth Amendment,” the panel wrote. But “because no analogous case existed at the time of the shooting, the district court erred by denying Gutierrez qualified immunity for this claim.”


As U.S. Circuit Judge Don Willett wrote in a 2018 decision, “to some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” And in many cases, courts don’t even rule on whether the alleged conduct would have been unconstitutional, taking a pass on one of their core duties. Last September, the 9th Circuit ruled that Fresno, California, police officers accused of stealing more than $225,000 while executing a search warrant were protected by qualified immunity, but it also declined to say whether the alleged theft violated the Constitution.

Between the farcical standard that many courts enforce on plaintiffs to find identical cases, and those same courts’ refusal to establish new case law, the doctrine of qualified immunity is a formidable barrier to civil rights lawsuits against police. In a Reuters analysis of 252 federal appellate opinions from 2015 to 2019 where law enforcement defendants claimed qualified immunity, courts ruled in the police’s favor in 57 percent of the cases. “Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment,” Supreme Court Justice Sonia Sotomayor wrote in a 2018 dissent. “It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

But the Supreme Court is, to understate it, reluctant to second-guess police. As the Cato Institute’s Clark Neilly noted this week, the Court “recently let stand an Eighth Circuit decision dismissing, on qualified immunity grounds, a Section 1983 case against a Nebraska officer who picked up a five-​foot-tall, unarmed woman clad only in a bathing suit and drove her head-​first into the ground, knocking her unconscious and breaking her collarbone—not because it was lawful for him to do so, but rather because there happened to be no case on point with precisely those facts.” Ending qualified immunity wouldn’t end police brutality, but it would put departments and individual officers on notice that they can no longer brazenly harm and kill people without consequences.”



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