( Here is a video link for those unable to read the post. https://youtu.be/aIfGG8KO-Cs)
Due to the killing of George Floyd and others who have died at the hands of law enforcement in America i.e. Brianna Taylor, there has been a wave of renewed calls for those guilty to be charged and prosecuted. However, due to the failures of the past to secure justice the public appear unwavering in its conviction that proper change occurs rather than simple lip-service.
As a result, of this wave I was motivated to look into why it seemed that police get away with crimes of brutality during which I came across a possible explanation which gave police the excuse that “they can shoot first and think later”. The answer to which is cleverly used as the title to this blog called ‘Qualified Immunity’.
Before I start I feel that it is responsible for me to have a quick disclaimer that though I studied Law in America for one year during my year abroad I am by no means an expert in American law. However, I did graduate with a 2:1 from university studying law which means although I have some legal knowledge, I am still a relative novice. Hopefully, having explained that you will not take my word and opinions as gospel and in fact investigate the area for yourselves. I will display a list of websites I used to research the area at the bottom of the page so that you have a starting place for your own research.
All good? Great let’s get started!!!!!
Qualified Immunity. Not many people will know what that means, but to those who do well done because if you asked me what it was prior to George Floyd’s death my face would look like someone who was told Xbox is better than PlayStation, which FYI is not even close so you can miss me with that.
The defence of Qualified immunity was first introduced by the Supreme Court in 1967 in the case of Pierson v Ray . The reason for its inception was to protect government employees from lawsuits brought by the public and so give police breathing room to carry out their jobs without fear of repercussion.
The test to decide whether Qualified immunity is granted is based on a two-part question with both requiring the answer to be ‘Yes’ for the defence to be removed whilst a ‘No’ ensures the defence is available.
Part 1 asks whether evidence shows or could convince a jury that the officers used excessive force in violation of the Fourth Amendment:
If the answer is yes, then the court moves to part 2 of the test,
If no, qualified immunity is granted.
Part 2 asks whether the officers should have known they were breaking “clearly established” law.
If the answer is no, Qualified immunity is granted.
If yes, the case goes to trial without the defence
Clearly established law for those who don’t know, explained simply, means if in a previous court decision a case containing a set of facts was decided one way, judges hearing cases afterwards which were similar to the previous case would take it into consideration as an example, or guide when basing their decision on the current one.
Now I would not be surprised if some of you people are probably thinking ‘cool I understand all that but how exactly does this stop police from being charged ? Surely if their actions were so bad they would be in prison?’ Well in response to this I would direct you to Reuters site who wrote about the death of Johnny Leija. I believe once you read his story you will begin to understand the barrier to justice Qualified immunity can create, and if you still do not see a problem I would urge you to continue reading or listen to my evaluation as hopefully I will ease some of your confusion.
On the 24th of March 2011 Mr Leija was in a local hospital because he had been sick and disoriented because he had pneumonia. The staff at the hospital called the police for help giving Mr Leija an injection to calm him down. The events which take place when the police arrive are shown briefly on the Reuters website as it was caught by security cameras in the hospital. Regardless, I will give a summary of what the cameras show for those who are unable to access the website at the current time. The cameras’ video Mr Leija walking along the hallway being followed by three police officers, afterwards, a struggle appears to unfold where he is wrestled to the floor where Mr Leija goes limp and the hospital staff are unable to resuscitate him. Mr Leija’s death was said to have been caused by his lungs, already weakened by pneumonia, being starved of oxygen during his struggle with police.
As you would expect, Mr Leija’s mother attempted to sue the police following the death of her son alleging the officers had used excessive force. Unfortunately, her case failed due to the defence of qualified immunity despite her lawyer arguing that the police officers’ treatment of Mr Leija was “clearly established” as illegal. To argue this, earlier cases in which police were held liable for using excessive force on unarmed, mentally compromised people were used . However, the court found that these cases were not similar enough to the present circumstances, thus the police had no reason to think they were breaking the law and so had the defence of qualified immunity.
A major problem with this defence and therefore potentially cases involving it is that it is highly unlikely that a case is going to be 100% identical to another one. This means if we literally follow the line of reasoning to its logical conclusion that cases must be nearly identical in order to be considered, it is almost impossible for an officer to be held accountable if they are the first to misbehave in a certain way. Hence, when the court draws such a strict line on what counts as “clearly established law” it can lead to confusion and potentially a lack of justice in future cases. One such example was raised in the Wall Street Journal by Robert McNamara in the case of Shaniz West.
In this case an Idaho woman gave her house keys to the police to search for her ex-boyfriend who was wanted by them on firearms charges. Though he was not inside, the police threw grenades and fired shotguns at the house until it was uninhabitable leaving Ms. West homeless. In response, Ms. West sued the officers for violating her Fourth Amendment rights, but her claim was rejected due to the defence of qualified immunity.
Mr McNamara opinion as to the findings of this case further highlights the problematic rulings which can stem from this defence.
He points out that “Nobody seriously believes that consent to enter a home is permission to lob grenades into it. But no court has ever decided the question, because as far as I can tell, this is the first time anybody has made the argument,” he goes on to say. “Since no court has considered it, qualified immunity means Ms. West loses. As long as an official’s conduct is uniquely outrageous, it’s impossible to hold him liable for it.”
Furthermore, the Pearson v. Callahan case, set in 2009, makes it harder to convict officers as the Supreme Court allowed appellate courts to skip part one of the qualified immunity test and so focus on whether the conduct was clearly established as unlawful. Therefore, In such cases, when the court does not establish whether police used excessive force in violation of the Fourth Amendment, it prevents setting a “clearly established law” for future cases as required by the second part of the test. In effect this means the same conduct can repeatedly go unpunished as it creates a closed loop in which case law remains frozen and cannot move forward, thus limiting the amount of cases the public can use to show that the actions of the police were illegal.
From what I can gather the following are justifications for qualified immunity:
- Protects law enforcement officers being bankrupted by civil lawsuits
Though on paper this seems nice as police officers are not paid as much as they deserve, much like NHS staff, the justification ignores the reality that such costs are most likely paid by the officer’s insurance, or union. Moreover, even if they were getting sued potentially it would make the police as an institution change their training due to the economic repercussions it would have on the police.
- Without qualified immunity, law enforcement would be deterred from doing their jobs effectively.
This can be argued against as law enforcement officers probably do not think about the threat of being sued when performing their duties as it would hinder their ability to act and they probably have little time to think such things through whilst involved in an incident.
Thus, taking this into account I think there is a strong argument to be made that the defence of qualified immunity should be removed or at the very least changed so that the public are more able to bring claims against the police .Critics of qualified range from civil rights groups, lawyers and supreme court judges. In a dissent to the 2018 case of Kisela v. Hughes, the justices threw out a lower court’s ruling that denied immunity to a Arizona cop who shot a mentally ill woman four times whist she walked along her driveway holding a kitchen knife. Justice Sotomayor, along with fellow Justice Ruth Bader Ginsburg, wrote that the majority’s decision favouring the police tells them that “they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Overall, given the wide array of criticism aimed at qualified Immunity, as well as the inability for the victims of police crimes to obtain effective justice there needs to be a closer look into practical workings of the defence. Whilst I am weary to argue that the defence should be terminated, I do believe at the very least it needs to be changed drastically so that it not only protects officers when it is reasonable to do so but also allows access to justice for victims of police wrongdoings. As previously mentioned, although people may point to the lack of protection it potentially affords to officers, denial of immunity does not automatically mean police will be held liable for alleged excessive force. When such cases go to trial juries may honestly side with the police after weighing the facts of the case, meaning the officer in question will hopefully only get punished if they are truly deserving of it not because they are left without the protection of qualified immunity. Moreover, even if the officer is charged and ordered to pay, the insurers or the police institution themselves, not the individual officers are the ones more likely to shoulder the financial burden of litigation, settlements or jury awards. Finally, though people may to point to infamous cases such as Eric Garner, Michael Brown, Tamir Rice etc to suggest that the officers got punished I will remind you that in fact no criminal charges were given out in these cases rather massive financial settlements. Arguably, this is because qualified immunity is probably not going to come into play in such high-profile cases due to the police coming under heavy pressure from both public protests and political condemnation. A potential reason for this being that rather than go though the court process which is not only longer but ensures more eyes and scrutiny will be applied to the police a settlement may either bring the negativity to a halt or at least minimise it to give the police time to rebuild good public sentiment towards them which may even turn to annoyance at the victims continued call for change.
Where does this leave us now? Honestly, I for sure could not tell you.
Do I believe this real change may stem from this? Maybe, I hope looking at it optimistically you could argue major brands have never gone so far to take political stances as they are doing now (whether you believe it is genuine is another debate altogether). Pessimistically, it could easily be argued we believed real change would happen after previous killings which never really happened. Moreover, I fear the voice of the movement is getting lost in arguments about cancelling programs or statutes or removing the phrase master bedroom, when in fact this is not necessarily what I feel the majority are asking for. But again, this is a conversation for another day.
First, I would like to thank those of you still with me now and hope you have taken into account what I have had to say not as gospel but the start of your own journey into this topic. Please leave comments on your thoughts whether you agree with me or not I would love to see your opinion and hopefully people can get into a friendly debate on this topic and even bring in new angles.
Signing out, it has been your boy Jerome
ps. check this recent post out and please read past the first two paragraphs. I wouldn’t say I agree with everything but the points made are interesting at the very least. https://katthemovies.wordpress.com/2020/11/05/the-elephant-in-the-room-controversed/