Qualified Immunity: Local Policing & The Supreme Court
George Floyd was murdered by 4 police officers in Minneapolis, MN.
As a people, our power is more forcibly wielded at the local levels of government. Our collective ability to influence local policies and lawmakers means that we can bend our communities towards something better; voting is a tried and true mechanism in which to do so.
However, there have been several Supreme Court rulings that have directly impacted local policing practices. These rulings have shaped the way local police interact with their communities, get disciplined for misconduct, and are held accountable.
Harlow v Fitzgerald
In 1968, Ernst Fitzgerald, then an Air Force management analyst, testified before Congress about unexpected costs and technical difficulties associated with a new plane. When he was fired in 1970, Fitzgerald sued senior Nixon White House Aides Bryce Harlow and Alexander Butterfield, claiming that they had conspired to dismiss him in retaliation for his unflattering testimony.
When the case arrived at the Supreme Court in 1981, the question was whether government officials like Harlow and Butterfield were immune from civil suits. In an 8–1 decision, the Court answered that they were. The justices deemed this immunity necessary on the basis that if crucial government officials were constantly being sued, they would be unable to carry out their important duties. This doctrine, known as “qualified immunity” was not new, but Harlow vs Fitzgerald made it clear that it applied to all government officials.
Prior to Harlow vs Fitzgerald, Section 1983 of the US Code (from the 1871 Civil Rights Act) gave citizens the right to sue public officials who violated their rights. After Harlow v Fitzgerald however, plaintiffs must not only prove that their rights were violated, but that this right was clearly established. The Court has now made showing that one’s right was clearly established very difficult, insisting that a previous case must exist with similar context and conduct. This is of special importance in police misconduct cases, as Amir H. Ali and Emily Clark write “unless the victim can point to a judicial decision that happened to involve the same context and conduct, the officer will be shielded from liability.”
Graham v Connor
In 1989, Dethorne Graham filed charges against officers in Charlotte, NC alleging a violation of his rights by the excessive use of force by the police officers, unlawful assault, unlawful restraint constituting false imprisonment, and that the City of Charlotte improperly trained its officers in violation of the Rehabilitation Act of 1973. In contention was whether or not Graham had to prove that the police acted maliciously to cause harm.
In a unanimous ruling written by Justice William Rehnquist, the Court held that claims of excessive force used by government officials are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, not the Fourteenth Amendment.
The Court’s decision to embrace a Fourth Amendment perspective that frames excessive force as an isolated interaction between police and individuals would impede federal courts’ ability to consider how race and racism can influence an officer’s decision to use force. To be sure, before Graham, substantive-due-process claims concerning police violence focused largely on individual liberty rather than structural conditions. But shifting the constitutional standard for excessive force away from the Fourteenth Amendment would prove to hinder courts’ ability to consider such abuse as a problem tied to issues of equal protection and racial subordination — in turn limiting the types of claims that victims of police violence could successfully bring.
Kisela v Hughes
In 2010, Officer Andrew Kisela was notified of a woman acting erratically with a knife. Officer Kisela arrived on the scene to find Amy Hughes holding a knife. Officer Kisela demanded Hughes drop the knife twice, and when she did not respond, Kisela shot her four times. Hughes sued Officer Kisela under Section 1983, claiming Officer Kisela had used excessive force against her, in violation of the Fourth Amendment. The Ninth Circuit Court ruled in Hughes’ favor, claiming that excessive force had been used.
Yet in 2018, the Supreme Court overturned the Ninth Circuit Court’s decision without hearing arguments, chastising the lower court for being too general with the cases they used as precedent. The Court did not even consider whether excessive force was used. Instead they argued that Officer Kisela was entitled to qualified immunity, as there was no prior case similar enough to the current circumstances. Therefore, the Court posited that Officer Kisela couldn’t have known that his actions were violating the law.
Justices Sotomayor and Ginsberg dissented, with Justice Sotomayor writing that the Court was “effectively treating qualified immunity as an absolute shield” and siding with a police officer who decided to “shoot first and think later.”
Kisela v Hughes is simply the latest instance of the Supreme Court using qualified immunity to protect law enforcement. Critics have pointed out that the circumstances surrounding cases will always be different, making it near impossible to satisfy the Court’s demand that prior cases have the same context and conduct in order to count as precedent. Furthermore, they note that this defence creates a loop, where recent cases dismissed due to qualified immunity are unable to serve as precedent to future similar cases, freezing justice.
