How Qualified Immunity is Enabling Police Brutality

A simple change in the law could prevent tragedies like George Floyd.

You may not know what it means right now, but the legal term “Qualified Immunity” is about to become a household term. It is a big reason why police are able to get away with so much brazen misconduct with so little oversight. I’ll explain.

The way to sue for police misconduct (and other Constitutional violations) is under the Federal Statute 42 U.S. 1983 which, in short, allows people to sue for civil rights violations done “under the color” of laws. This applies to the “deprivation of any right”, including the right to not be physically harmed. So, when police are sued for misconduct, they are usually sued under this statute (“1983 actions” for short).

It seems pretty simple, right? If you can prove that an officer, acting under the color of his authority, exceeded that authority, and violated your Constitutional Right, then he or she is liable for the damages. Damages can be pain and suffering, hospital bills, lost wages, etc. But, as any lawyer can tell you, 1983 actions are some of the most difficult to win. And a big reason they are so difficult is because of Qualified Immunity.

Qualified immunity (or QI) will apply if a so-called “reasonable actor” would not have known he or she was violating a “clearly established statutory or constitutional right.” Again, on the surface, this is pretty simple. Not all uses of force by police are violations, and we don’t want to penalize police when that use of force is not a constitutional violation.

But the problem is not with the substance of QI itself, but rather in how it is applied. Whether an officer is entitled to QI has become an issue to be decided by the judge. If he determines that QI applies, the case is over. A jury never hears the facts. However, let’s say the judge finds no QI and allows the case to continue? Now you could face an interlocutory appeal – meaning you must take your case to the appellate level and win all over again. The process could take years before you’re ever getting to the merits of the case

The thing I find most insidious about Qualified Immunity is that it allows racism, classism, and authoritarianism to be shrouded in legalese. The term is not readily understandable without doing the legal research. And once you do the legal research, you see it for what it is: a barrier thrown up by the ruling class to protect their own.

The George Floyd tragedy has already brought the question of Qualified Immunity back to the forefront. And you might now be wondering – How can we get rid of QI? There are two ways it could happen. First, the Supreme Court could take up the issue. There are rumors that they could do just that very soon. The problem here is that they would need to undo nearly 40 years of precedent to abolish it, and the Supreme Court is loathe to go against precedent. The second way to abolish QI would be through legislation. A new statute or an amendment to 1983 could take the issue out of the hands of judges and give that power to the jury.

It is my sincere hope that the unrest following the George Floyd murder will bring about positive changes. This is one change that makes sense. Through community oversight, the police will be forced to be better. 1983 actions give the community –by way of juries -the chance to hit the police department where it hurts: in their pocket books.

Officer Derek Chauvin had 18 prior complaints. The internal discipline – or lack thereof – has not been made public. If any of those violations had resulted in a 1983 lawsuit, the details could have come to light, and it would have been more difficult for Minneapolis PD to sweep them under the rug. Would it have resulted in Derek Chauvin being fired, thus weeding out one of these “bad apples” that politicians are so anxious to blame? I don’t know. But I do know that more oversight is needed. 1983 Actions need to regain their teeth. The only way to do that is to abolish Qualified Immunity.

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