Immunity and Justice are Irreconcilable

Why the Supreme Court Should Take the Second Step toward Criminal Justice Reform

Simone Chérie
Nov 5 · 7 min read
Halt.org, 2019. No Copyright Infringement Intended.

Coffee County Deputy Michael Vickers and two other officers were on foot pursuing criminal suspect Christopher Barnett, when Barnett cut through the backyard of a random home. At the time, one adult and six children were in the backyard. The officers ordered everyone to get on the ground and the family complied, allowing the officers to get Barnett into custody. Then, a family dog walked onto the scene.

Coffee County Georgia, Deputy Sherriff Michael Vickers, AJC.com No Copyright Infringement Intended.

Though the dog did not appear threatening according to reports, Vickers fired two shots. He missed the dog, but he did happen to strike the family’s ten-year-old child through the knee. The boy had been lying still on the ground, as ordered, approximately 18 inches away. As a result of the gunshot, he required orthopedic surgery, physical therapy, and suffered post-traumatic trauma.

The child’s mother filed a lawsuit against Vickers under Section 1983. The text states that any public official who violates someone’s rights “shall be liable to the party injured.” However, Judges exonerated Vickers, declaring that he was entitled to qualified immunity.

Recently, we’ve seen two presidential forums focused exclusively on the subject of criminal justice reform. On October 26th, a handful of Democratic candidates traveled to the former Eastern State Penitentiary in Philadelphia to participate in a JusticeVotes 2020 Town Hall, organized and led by formerly incarcerated leaders. That same weekend, a three-day 2019 Presidential Justice Forum hosted by the 20/20 Bipartisan Justice Center was held at Benedict College. These are the kinds of historic, momentum-building events that pave the way for major reform.

President Trump has frequently discussed his support of criminal justice reform, and most Democratic candidates have released detailed plans on how to address many important issues. However, conversations about the poisonous legal doctrine known as qualified immunity have not yet taken center stage.

Justice’s Thomas and Sotomayor have criticized qualified immunity in multiple cases, with specific mention of police shootings, and there is growing speculation that the Court may indeed take up a case that could reverse the doctrine for good.

THE ROYAL SHIELD

The Qualified Immunity doctrine shields government officials, such as police officers, from being sued for actions performed within their official capacity. This shield includes crimes ranging from misdemeanors, such as reckless discharge of a firearm, to felony murder.

The doctrine dates back to English common law, in which the King (“the Crown”) was indeed held above the law, as his authority was considered second to only God. At the height of the civil rights era (1967), the U.S. Supreme Court adopted qualified immunity, describing it as a ‘modest’ exception to be made available only to public officials, such as police officers. Thereafter, any public official was permitted to violate the rights of citizens, so long as they acted in ‘good faith’ — that is to say, as long as they didn’t mean to do it.

Over time the doctrine was expanded upon. Today, qualified immunity enables public officials to violate the rights of citizens, even if they do so purposefully, so long as the specific actions they took when violating our rights, don’t break any clearly established laws.

The doctrine has become a hall pass for law enforcement—enabling officers to retain their jobs, salaries, benefits, and freedom, no matter how dangerous the misconduct.

AL — Hoover Police were never charged for killing E.J. Bradford, 21, whom they mistook for a suspected shooter. — Wendy L. Wilson, TheGRIO, 2018. No Copyright Infringement Intended.

…Immunity is only qualified in theory — in practice it is absolute.

Because the Supreme Court granted broad discretion with the “clearly established law” addendum, it is almost always inconsistently applied. Even the most minute details of an encounter can yield wildly different legal outcomes from judge to judge. As Fifth Circuit judge Don Willet wrote last year, “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.”

Consequently, immunity is only qualified in theory, and in practice it is absolute.

Proponents in favor of qualified immunity make two common arguments. The first, is that police officers are forced to make split-second decisions. They argue that split-second decision-making is critical for officers to do their jobs, and that those decisions should not be compromised, for fear of future civil liability.

SPLIT-SECOND DECISIONS

“Law enforcement officers must be able to (use) deadly force, if it’s appropriate, without that fear of liability hanging over their head,” said police auditor and qualified immunity proponent, Richard Schott. He added:

“Officers facing dangerous situations…could be stuck between a rock (potential liability for improper use of force) and a hard place (serious injury resulting from failure to act).”

This rationale garners a lot of empathy, but it isn’t the least bit rational. For an officer to find themselves in a dangerous situation, and subsequently feel stifled, or worried about what action they ought to take, they must be engaging in a level of analysis for some amount of time. Put another way, if there was enough time for an officer to perform the mental math of assessing legal consequences, whatever decision they subsequently chose, was not a split-second decision.

THE FLOODGATE MYTH

The second argument posed by qualified immunity proponents is known as the “floodgate” defense — the defense is that if qualified immunity is eradicated, it would open the gates for frivolous lawsuits, overloading the system and place a heavy financial burden on taxpayers.

The “floodgate” argument appears practical, but it reasons that we ought to continue to suffer significant ethical consequences under the current doctrine(the devil we know) than to attempt to right it, for fear of the unknown (the devil we don’t).

The truth is, alternative courses of action will require testing to be deemed successful, and there is no incentive for municipalities or states to test alternative courses of action under the doctrine of qualified immunity. However, there are some compelling proposals on the table:

Researchers from the Cato Institute have pooled together a range of ideas that redirect the cost of litigation from the public to the accused public officials themselves. One option is that law enforcement officers, like most other professionals whose jobs entail risk, carry liability insurance. Doing so could ensure that there are monies available to compensate victims, as well as protect individual officers from ruinous judgments.

A second option could be that officers use their own resources to pay out settlements. Certain conduct such as harassment and discrimination are prohibited under the Civil Rights Act, which makes employers primarily responsible for settlements to victims, however other conduct, certainly criminal conduct could be solely the responsibility of the accused officer.

But more importantly, it is evident in case after case after case, that qualified immunity has resulted in quite the flood gate already.

ALL BUT ABSOLUTE

In our hostile political climate, it is easy to consider any calls to end qualified immunity as an attack on police officers, whose work is uniquely dangerous, underpaid and underappreciated, already. However, a call to end qualified immunity is not at all about the character, ethics or fairness of individual officers, it is about the equality of private and public citizens in the eyes of the law.

Immunity is not strictly reserved for police officers. Consider prisoners who spend their entire lives in jail as a result of malicious prosecution, or people who suffer permanent psychological trauma as a result of unlawful commitments to mental hospitals. In either of these situations, state actors may not carry a weapon in their official duties, but still, hold the power to all but destroy someone’s life.

If an officer violates the law and injures, or even harms your loved one, should they be held accountable?

If an officer violates the law at a cost to you, should you be entitled to compensation?

If police officers can be entrusted to carry lethal weapons and interface with the public, can’t they also be entrusted to do so without violating the constitutional rights of the public?

These are not trick questions. To answer them once and for all, we must retract qualified immunity. It’s time to hold public officials liable for their constitutional violations every time they commit a violation. After all, protecting and defending the Constitution is their primary job.

Although the Supreme Court has yet to officially take up a case regarding qualified immunity, organizations across the political spectrum, such as the Alliance Defending Freedom, the American Civil Liberties Union Foundation, the Second Amendment Foundation, and the American Conservative Union (among others) have joined forces to ask the Supreme Court to reverse the doctrine.

If retracted, it could do much more than compensate for past wrongs. The mere possibility of civil and criminal liability can work as deterrents to redirect and actions of all public officials, including police officers. Any arguments that qualified immunity was not ‘meant’ to create a barrier to justice, do not satisfy the fact that it does exactly that.


CJR101: In our CJR101 series, Antiparty attempts to unpack the statues and policies that lie behind the headlines. If you found this useful, please let us know!

antiparty

@antiparty is a collection of essays about liberty (free speech and access to opportunity), innovation (developments in solutions to community problems) and justice (criminal law problems and the justice reform movement)

Simone Chérie

Written by

Activist, Fundraiser & Speaker 💙 I write about justice, liberty, faith and innovation @thesimonecherie everywhere

antiparty

antiparty

@antiparty is a collection of essays about liberty (free speech and access to opportunity), innovation (developments in solutions to community problems) and justice (criminal law problems and the justice reform movement)

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