Two legal ideas explain how cops can commit violence against Black people and not be held accountable.
Discussion Guide
- What did you learn about the origins of modern police departments? What surprised you? What does this history tell us about the purpose of policing today? Does it affect your view of demands to defund or abolish police?
- According to the video, why do the police keep murdering Black people and others without consequence?
- If the judicial system is designed to protect officers, how could communities address policing without relying on the courts?
- What are some ideas, tools, and strategies you can implement in your own daily life for keeping your community healthy and safe?
- Today, the United States collectively spends $100 billion a year on policing and a further $80 billion on incarceration. describes abolition as “not just about eliminating something (e.g., police and prisons); it is about creating what we need to live, love and thrive.” What could we do with $200 billion for our communities?
Explainers
Qualified immunity refers to a series of legal precedents that protect government officials — including police officers — accused of violating constitutional rights. It is one of many structural factors that make it difficult to hold police officers accountable for wrongdoing.
What is Qualified Immunity?
In the context of policing, qualified immunity is a legal shield that prevents police officers from being put on trial for a violation of rights unless the person bringing the claim proves two things: 1) that the evidence shows or could convince a jury that the officer violated a right; and; 2) that the officer(s) should have known that they were violating “clearly established” See Saucier v. Katz, 533 U.S. 194 (2001).
In practice, this means that even if a victim can show the police used excessive force, a court will grant immunity if the plaintiff cannot point to an identical case in the same jurisdiction or from a higher court which found the conduct illegal.
What is the history of Qualified Immunity?
42 U.S.C. §1983, a federal statute passed in 1871, provides individuals the right to sue government officials for damages to remedy violations of constitutional rights. For nearly the first 100 years of §1983’s existence, there was no recognized qualified immunity defense. Then in Pierson v. Ray, 386 U.S. 547 (1967) the United States Supreme Court held that a qualified immunity defense was available to police officers in §1983 claims if they acted in good faith and with probable cause.
Later, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court eliminated the good faith requirement in the interest of avoiding the “substantial costs” of litigating subjective intent, meaning that they would have to demonstrate the officer’s state of mind instead of expressed intentions. Finally, in 2001, the Supreme Court held that a ruling on qualified immunity must be made early in the trial court proceeding at the summary judgment stage, because qualified immunity is not just a defense from liability, but a defense from having to stand trial in Saucier v Katz, 533 U.S. 194 (2001). Additionally, the Saucier Court created the 2-part test used today to determine if an official is entitled to qualified immunity.
What is the Harm Using Qualified Immunity?
The doctrine of qualified immunity has evolved into an absolute shield protecting police officers from any form of accountability for misconduct, excessive force, and constitutional violations. In a 2018 case, an Arizona police officer shot Amy Hughes, a mentally impaired woman, four times when she was speaking with her roommate in her driveway. The Supreme Court held that the officer had not violated “clearly established law.” In their dissent, Justices Sonia Sotomayor and Ruth Bader Ginsburg wrote that qualified immunity “tells officers that they can shoot first and think later . . . and it tells the public that palpably unreasonable conduct will go unpunished.” See Andrew Kisela v. Amy Hughes, 584 U.S. ____ (2018).
How does Qualified Immunity impact criminal and civil cases?
Unlike most legal cases where the State has the burden of proof, in a civil case of police violence, once an officer has invoked qualified immunity, the victim (or the victim’s family) must convince a court that qualified immunity doesn’t apply in order for the lawsuit to proceed.
Civil cases are those involving lawsuits brought for monetary compensation.They are often the only means by which individuals or their families can get compensation when a police officer has physically harmed them or otherwise violated their civil rights.
Qualified Immunity applies only in civil cases, not criminal cases. However, evidence that a defendant took a plea or was found guilty in criminal court is admissible in civil court and can be used as part of the officer’s defense.
What is the future of Qualified Immunity?
In recent years as police violence and brutality has become part of the national conversation, qualified immunity has come under fire as a barrier to holding officers and government entities accountable.Two states—Colorado in June 2020 and New Mexico in April 2021—have passed legislation banning qualified immunity. In March 2021, New York City moved to end qualified immunity, becoming the first city in the U.S. to do so.
Resources
- Legal Barriers to Challenging Excessive Force by Police, Equal Justice Initiative; Legal Information Institute; Institute for Justice
- Legal Information Institute; Justice Thomas dissent from denial of certiorari, Baxter v. Bracey (2020); Reuters Investigates
- Institute for Justice; Equal Justice Initiative
- Innocence Project; Equal Justice Initiative—Qualified Immunity; The New York Times
This explainer will highlight the foundation of the “defund the police” campaign and demonstrate the differences between policies that seek to reform police and policies that seek to abolish police.
What does it mean to “defund the police”?
Defunding the police is an organizing demand to divest from the oppressive systems of law enforcement and state-sanctioned violence against Black, Brown, Asian, Indigenous, LGTBQA+ and poor people, and to invest in communities to meaningfully address the root causes of behaviors that are criminalized. Under the defund demand, organizers also call for public safety alternatives driven by the vision and desires of the people who live there. Defunding the police is a strategy to reallocate resources into communities hard hit by poverty, structural racism and discrimination by starving the institutions that breed inhumanity, violence and marginalization.
Why Should We Defund?
Police do not make our communities safer .Police disproportionately kill Black people and reducing the number of contacts police have with Black communities is crucial to protecting Black lives.The vast majority of calls to police officers are for non-urgent and non-life-threatening situations. Taking the police out of the equation for these situations reduces the potential for police brutality and reduces social costs.
Keeping our communities safe requires more than police or policing.The United States has historically underinvested in Black and Brown communities. Police do not reduce crime but investing in these communities does.We need increased transparency and accountability for those who protect and serve us. For our communities to thrive, we must redefine what safety means.
Why Not Reform?
A review of the historical role policing has played in the United States since its inception helps us understand that the institution isn’t broken—it is functioning as it was intended to—and it cannot be reformed.
Many reforms that are popular among legislators, police, and the public have failed to bring forth the positive changes that were promised.
Reforms can directly or indirectly increase policing budgets.
Examples of Reform v. Abolition
Reforms that should be opposed:
- Reforms that allocate more money to the police.
- Reforms advocating for more police and policing.
- Reforms that are primarily technology focused.
- Reforms that are focused on individual dialogues with individual cops.
Proposals that should be supported:
- Proposals that police interaction with communities.
- Proposals that minimize police associations’, or police unions’ power and influence or disband them altogether.
- Proposals and legislation that offer reparations to victims of police violence and their families.
- Proposals and legislation to require police officers to carry personal liability insurance to cover the costs of brutality and wrongful death claims.
- Proposals and legislation to decrease and redirect policing and prison funds to other social goods.
- Proposals and legislation for elected independent civilian police accountability boards with the power to investigate, discipline, and fire police officers and administrators.
- Proposals and legislation to disarm the police, decrease/eliminate surveillance or decrease funding to police departments.
- Proposals and legislation for data transparency.
Resources
- Police “Reforms” You Should Always Oppose
- Liability Insurance Could Hold 'Reckless' Police Officers Accountable
- Study Finds Increased Incarceration Has Marginal-to-Zero Impact on Crime
- How Civilian Review Boards Can Further Police Accountability and Improve Community Relations
- Our Position - Disarm the Police
