Updated: Sep 28
By: Adrienne Nel*
For years, American citizens have watched prosecutors in cases involving violent government officials abdicate their responsibility to argue for indictments. Police violence in America, particularly targeting African American and minority communities, is not new news. In fact, police brutality against people of color is deeply engrained in US history, which begs the question, why has nothing been done to remedy this injustice?
Qualified immunity is one of the gaping wounds of injustice in the American political and legal systems. The doctrine has become one of the chief ways in which law enforcement officials avoid accountability for their misconduct. Police officers are public servants employed to uphold the standards presented in the United States Constitution, and qualified immunity was meant to balance “two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” In light of the hundreds of racist killings by police officers over the past decade-plus, and the Supreme Court’s inability to place liability on the officers or the American police force, it is clear that qualified immunity no longer serves to further the pursuit of justice in the United States.
Courts have agreed that the threshold questions essentially come down to “what is excessive force “and when is it appropriate.” However, over the past five decades, the bar has been raised to an unattainable standard for plaintiffs, where only suits in which officials have violated a “clearly established” statutory or constitutional right are allowed before the courts. Even then, plaintiffs are faced with the roadblock to justice that is the “qualified immunity” doctrine. For example, in 2004 a pregnant Malaika Brooks was brutally tasered by police officers for failing to sign a speeding ticket. The officers won in a split decision from a 10-member panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco. The majority stated that the officers had in fact used excessive force, violating Brooks’ constitutional rights, but regardless, the officers responsible could not be sued. These judges relied on the “qualified immunity” legal doctrine, which inevitably robbed Brooks of justice.
In light of the countless cases of brutality, abuse of authority, misuse of force, and use of deadly force, it is clear that this power is too widely abused, and an immediate legal remedy is essential. The time has come to recognize the problematic nature of qualified immunity. Apart from the fact that it hinders the protection of civil rights in a number of ways, it invalidates the fundamental purpose of the United States Constitution and the protections therein afforded to all US citizens. Until Qualified Immunity becomes obsolete, the burden will fall on prosecutors and government lawyers to take a stand. As Cardozo Professor, Alex Reinart recently wrote, ”[g]overnment lawyers have the power and obligation to determine whether particular litigating positions are in the public’s interest. They can exercise their discretion not to raise certain defenses in civil rights litigation.” skilled people in the United States between 2013 and 2019, 25 ( 0.3%) resulted in a conviction, 74 (1.0%) resulted in a charge but no conviction and 7,567 (98.7%) resulted in no charges whatsoever. With that said, there were only 27 days in 2019 where police did not kill someone.
Perhaps, to better understand America’s problem, it would be useful to look in part to South Africa, a nation plagued with police violence and racial inequality. South Africa has a majority Black government and police force, an independent national law enforcement body dedicated to crimes committed by police, and one national standard for use of force. However, the nation still faces issues with severe police brutality. In May 2020, South Africa’s High Court ordered the suspension of soldiers and police officers who were at or near the home of a man who was killed by allegedly being beaten to death by security forces. South Africa, similarly, faces issues of accountability with their police forces and national guard. However, as a nation, South Africa has worked to extend police accountability. The South African Constitutional Court has been refining legal precedent by extending the basis for civil claims against police officers who break the law and cause injury or damage to citizens. A judgment penned in 2012 by South African Chief Justice Mogoeng Mogoeng held that even when off-duty if there is enough of a connection between their employment as police officers and their illegal acts (under the South African Constitution) the Minister of Police may be held liable for the unlawful actions of the officer. This concept takes from the idea of “command or superior responsibility” where a superior may be held criminally responsible under the doctrine where, despite their awareness of the crimes of subordinates, they culpably fail to fulfill their duties to prevent and punish these crimes.  Even where the individual officers are not held liable in civil or criminal court, their superiors can be, which incentivizes greater surveillance of lower officers.
In the five decades since the doctrine’s implementation in the United States, qualified immunity has expanded in practice to excuse all manners of police misconduct, from assault to homicide. As the legal bar for victims to challenge police misconduct has been raised higher and higher by the Supreme Court, the lower courts have followed, often leaving no one accountable for the crimes against humanity committed by the police. Today the United States as a nation has witnessed the racist killings of George Floyd in Minnesota, Breonna Taylor in Kentucky, and many others by the nation’s police force. Having gone unaccountable for so many years, the police’s use of force has resorted to frivolous and lethal results. It is with this said, that it is clear the doctrine of qualified immunity is obsolete and in reality, presents a loophole for gross violations against basic human rights. The accountability of individual police officers is a fundamental issue for police executives. Police officers are the public officials that society has authorized, even obliged, to use force in an equitable, legal, and economical manner on behalf of the citizens of this nation.
In light of the countless cases of brutality, abuse of authority, misuse of force, and use of deadly force, it is clear that this power is too widely abused, and an immediate legal remedy is essential. The time has come to recognize the problematic nature of qualified immunity. Apart from the fact that it hinders the protection of civil rights in a number of ways, it invalidates the fundamental purpose of United States Constitution and the protections therein afforded to all US citizens. Until Qualified Immunity becomes obsolete, the burden will fall on prosecutors and government lawyers to take a stand. As Cardozo Professor, Alex Reinart recently wrote, ”[g]overnment lawyers have the power and obligation to determine whether particular litigating positions are in the public’s interest. They can exercise their discretion not to raise certain defenses in civil rights litigation.”
* Adrienne is a 3L at Benjamin N. Cardozo School of Law and the Editor-in-Chief of the Cardozo International & Comparative Law Review. She received her BA in Art History and Human Rights from Barnard College, at Columbia University.
Damien Cave, Officer Darren Wilson’s Grand Jury Testimony in Ferguson, Mo., Shooting, N.Y. Times (Nov. 25, 2014), https://www.nytimes.com/interactive/2014/11/25/us/darren-wilson-testimony-ferguson-shooting.html. Amir H Ali & Emily Clark, Qualified Immunity: Explained, The Appeal(Jun. 20, 2019), https://theappeal.org/qualified-immunity-explained/. See Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). See generally Comty. Relat. Serv. U.S. DOJ, Police Use of Excessive Force: A Conciliation Handbook for the Police and the Community, (June 1999 updated June 2002), https://www.justice.gov/archive/crs/pubs/pdexcess.htm. See generally Roger K. Picker, Comments: Police Liability in High-Speed Chases: Federal Constitution or State Tort Law; Why the Supreme Court’s New Standard Leaves the Burden on the Burden on the State and What this Might Mean for Maryland, 29U. Balt. L. Rev.139 (1999). Adam Liptak, A Ticket, 3 Taser Jolts and, Perhaps, a Trip to the Supreme Court, N.Y. Times(May 14, 2012), https://www.nytimes.com/2012/05/15/us/police-taser-use-on-pregnant-woman-goes-before-supreme-court.html. Id. Id. Id. Katie Bart, Ask the author: Reuters on the consequences of qualified immunity for police officers, SCOTUSblog, (May 15, 2020, 1:11 PM),https://www.scotusblog.com/2020/05/ask-the-author-reuters-on-the-consequences-of-qualified-immunity-for-police-officers/. Id. Andrew Chung, et al., For cops who kill, special Supreme Court protection, Reuters(May 8, 2020),https://www.reuters.com/investigates/special-report/usa-police-immunity-scotus/. See generally Samuel Sinyangwe, Mapping Police Violence, Police Violence Report, (last updated Aug. 24, 2020), https://mappingpoliceviolence.org. Id. Aditi Juneja, To Understand U.S. Police Impunity Better, I Went to South Africa, Rewire News(Feb. 22, 2018, 3:13 PM), https://rewire.news/article/2018/02/22/to-understand-police-impunity-south-africa/. Emma Rumney, Court orders suspension of South African soldiers over death of man in lockdown, Reuters(May 15, 2020, 9:39 AM), https://www.reuters.com/article/us-health-coronavirus-safrica-military/court-orders-suspension-of-south-african-soldiers-over-death-of-man-in-lockdown-idUSKBN22R24O. Chandre Gould & Gareth Newham,TheSouth African Constitutional Court has set new legal precedent by extending the basis for civil claims against police officers who break the law and cause injury or damage to citizens, ISS(Feb. 6, 2012), https://issafrica.org/iss-today/the-south-african-constitutional-court-extends-police-accountability Id. Id. See generally The Peace and Justice Initiative, The Doctrine of Superior/Command Responsibility, https://www.peaceandjusticeinitiative.org/implementation-resources/command-responsibility. Id. The Editorial Board, How the Supreme Court Lets Cops Get Away With Murder, N.Y. Times(May 29, 2020), https://www.nytimes.com/2020/05/29/opinion/Minneapolis-police-George-Floyd.html. Id. George L. Kelling et al., Police Accountability and Community Policing, U.S. DOJ Nat. Inst. Of Just., (Nov. 1988), https://www.ncjrs.gov/pdffiles1/nij/114211.pdf. Id. Alex Reinart, We Can End Qualified Immunity Tomorrow, Bos. Rev. (June 23, 2020), http://bostonreview.net/law-justice/alex-reinert-we-can-end-qualified-immunity-tomorrow.