. . .
“Everybody wants to talk about how Khalil died,” I say. “But this isn’t about how Khalil died. It’s about the fact that he lived. His life mattered…”
from The Hate U Give
by Angie Thomas
Balzer + Bray, 2017
I found four different definitions of immunity in my on-line American Heritage Dictionary.
- [An] inherited, acquired, or induced resistance to infection by a specific pathogen. We all know about the COVID-19 vaccines.
- Exemption from certain requirements of law granted to special groups to facilitate their public functions. Think diplomatic immunity and judicial immunity.
- Exemption from prosecution granted to a witness to compel that witness to give potentially self-incriminating testimony. Here’s where the Fifth Amendment is applied.
- A condition conferred upon a contestant that prevents that contestant from being eliminated from a competition for a certain time period.
According to the American Bar Association’s blog, December 17, 2020, “[q]ualified immunity is a judicial doctrine created by the Supreme Court that shields state actors from liability for their misconduct, even when they break the law.”
In cases of qualified immunity, a court must decide two things:
a constitutional right has been violated AND
that right was clearly established at the time of the conduct.
Qualified immunity is a balancing act. On one side is the need to hold public officials accountable for their actions, especially if their power is wielded irresponsibly. On the other hand, those same public officials deserve to be protected from unnecessary or excessive harassment and distraction from an individual or the public when their duties are carried out responsibly.
Shortly after the Civil War, Congress gave Americans the right to sue public officials who violated their civil rights. The language Congress used in the Civil Rights Act of 1871 was very clear: “Every” state official who causes a “deprivation of any rights” guaranteed by the Constitution and laws “shall be liable to the party injured.” The Act was also known as the Ku Klux Klan Act. It was a protection especially provided to Blacks who were still targeted in the South.
But ironically, during the Civil Rights movement I remember, 1967 saw the Supreme Court put parameters around those state officials by inventing qualified immunity. The Court described their change as a moderate exception of the 1871 Act for officials who, acting in “good faith,” accidentally injured (physically or otherwise) someone. In other words, those officials (most usually police officers), were immune from prosecution if they believed they were acting legally.
But, it is very difficult, if not impossible, to prove intent.
Fifteen years later, the law was reinterpreted again. Now, even an officer who knowingly violates someone’s civil rights, (unless the victim can provide a prior judicial opinion in a previously decided case involving the same “specific context” and “particular conduct,”) the officer is immune from prosecution. In other words, unless the target of the police action can point to a judicial decision that proved an officer guilty of the same conduct in the same place, the officer will be shielded from liability.
And that’s where we are today. An officer doesn’t have to prove s/he was acting legally. It is presumed that the officer knows the law, and if a person’s rights are trampled in upholding that law, it’s up to the trampled person to prove the officer was wrong. Whether using excessive force, conducting an unwarranted search, or controlling a crowd, officers hold enormous power. And they are protected from their actions by qualified immunity when they exert that power.
The National Police Support Fund claims that qualified immunity benefits the public because it creates trust. I’m not so sure. How can a police force ensure that, because s/he has qualified immunity, “a police officer will take the best actions needed to maintain law and order and keep communities safe”? https://nationalpolicesupportfund.com/qualified-immunity-pros-and-cons/
Again from the ABA’s blog (12/17/2020) “Police officers rarely face meaningful consequences for their misconduct, and the public’s accurate perception of this fact has contributed to what can best be described as a crisis of confidence in our nation’s law enforcement.” https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-21/issue-1/qualified-immunity/
Many police departments are looking hard at themselves. They are evaluating their training procedures and policies. Some even seem to understand that the best course of action may be to call for help from a different agency, one that does not shoot guns.
According to a Forbes article published March 4, 2021, https://www.forbes.com/sites/nicksibilla/2021/03/04/house-passes-new-bill-to-abolish-qualified-immunity-for-police/?sh=23565f572daf the House of Representatives has just approved the George Floyd Justice in Policing Act (H.R. 1280). It is a massive overhaul of American policing that includes the elimination of qualified immunity for all local, state, and federal law enforcement officers. The bill has been endorsed by the Biden administration. There may even be some bi-partisan support.
The bill is not perfect; it is not finished. But people are talking about it. Politicians, and regular people, too.
The wheels of change turn slowly.
-—stay curious! (and patient)