A License To Kill, A License To Steal
It is beyond absurd that prosecutors delayed so long in arresting Derek Chauvin in what video clearly indicates is the murder of George Floyd. As seems to be so often the case with police violence, Chauvin had a history of use-of-force incidents, with over a dozen complaints of misconduct in his 19-year career. Chauvin himself is apparently merely a reflection of the Minneapolis Police Department as a whole, which itself has a long history of abusive behavior and excessive force, especially when dealing with the African American community in that city. The current police chief even sued the department for tolerating racism earlier in his career. While accounting for just 20% of the city’s population, African Americans were the victims of 60% of police shootings over the last decade.
Each year, police in this country end up killing around 1,000 Americans, with blacks three times more likely to be killed than whites. Studies have shown that the militarization of local police forces contribute to an increased number of police killings, as SWAT-like teams execute increasingly used no-knock and quick-knock warrants. This is exactly the situation that led to the killing of Breonna Taylor in Louisville. Militarization not only involves providing the equipment for local police to launch what are basically military-style assaults on residences but also helps create a war-like mentality among the officers involved.
The number of Americans killed by police has not budged over the last few years even in the face of meaningful efforts at reform. Body cameras have apparently failed to change behavior but at least provide more objective evidence about police encounters, assuming they are turned on. Making police forces more diverse has also had no impact on minimizing racially biased policing, enforcing the view that the problem is institutional. What has worked in certain locales is tighter restrictions on when and how police can use force and extensive training on de-escalation and crisis intervention. Minneapolis has not implemented those reforms.
But perhaps the largest problem in reducing police brutality is the fact that there is little or no accountability for the cops who do it. That lack of accountability infects the entire criminal justice system, from police departments to prosecutors to courts. At each step along the way, law-breaking cops receive favorable treatment.
Studies from the 1990s have indicated that anywhere between 25% and 40% of police households suffer from domestic violence, a level that was two to four times the national average. The report also indicated that nearly half of police departments had no formal process for dealing with domestic abuse complaints against their officers. As with everything related to police violence, hard data is, purposely, difficult to come by. But a 2013 report indicated that domestic abuse by police officers was underreported; that police accused of domestic violence were often given the “benefit of the doubt” by fellow officers, resulting in no report or no arrest; and, incredibly, that over half of those officers arrested, charged, and convicted of domestic abuse actually kept their jobs. A California study by a consortium of news agencies reported that 40% of officers charged with domestic abuse were able to bargain the charge down to a nonviolent misdemeanor, often allowing them to keep their badge. Of those cops convicted of abuse, many already had a history of violence that was known to their department. In addition, the study found that judges often provide exemptions for officers who have restraining orders against them, allowing them to keep their guns. And we now know that domestic violence is an indicator for potential violence outside the home.
When police departments are unable to protect their own from accountability, prosecutors are usually there to step in. As the president of the National Police Accountability Project notes, “Prosecutors don’t want to pursue police officers criminally. They don’t want to have other police officers mad at them. They don’t want to be perceived as not team players. That is a systemic problem. That is built into the system”. That problem is why some legal scholars believe that having local prosecutors handle cases of police misconduct amounts to a conflict of interest. In New York, the State Attorney General automatically takes charge of a case involving a police killing. Having that system in place in Minnesota where Keith Ellison is the State Attorney General might have at least minimized the resulting riots. The systemic bias for police is also exhibited by local coroners, as exemplified by the Minneapolis coroner’s misleading autopsy report which eliminated asphyxiation and strangulation, which were not even in question, as the cause of death, while musing about “any potential intoxicants” in Floyd’s system as a possible contributor to it.
In a seven-year period in the 2000s, the FBI investigated over 2,700 incidents where a police officer killed someone in the line of duty, yet only 41 officers were charged with murder or manslaughter. In most of these cases, charges were not brought using the pretext of prosecutorial discretion. In cases which are actually brought before a grand jury, the prosecutors often act more like defense attorneys for the police as opposed to representatives of the people. As the county prosecutor who presented the case against the cops who killed Tamir Rice to a grand jury openly stated, “We don’t second guess police officers”. With that type of attitude from the prosecutor, it was no surprise that grand juries continue to refuse to indict.
Even when prosecutors actually charge police with crimes, the cops can basically use their badge as a bargaining chip to get a reduced sentence. A study in Texas reviewed nearly 300 cases over a three year period in which police were charged with a crime, half of which were felonies. In 245 of those cases, the cops surrendered their peace officers’ license, effectively barring them from working in law enforcement in the state, in return for reduced sentences. According to KXQN, which ran the study, “Officers who agreed to surrender their licenses received little or no jail time for offenses including sexual assault of children and women in custody, taking bribes and dealing narcotics to prisoners, lying about the circumstances of a police shooting and destroying evidence in criminal cases.
In some instances, the accused police officers already had histories of misconduct yet were able to trade their badges in a plea bargain and walk away with deferred adjudication and probation”.
With the chances of abusive police officers receiving any criminal sanctions relatively small, victims are forced to turn to civil suits to obtain some sort of justice. Here they run into a fabricated legal doctrine designed to protect civil servants who abuse their power. The right to sue police officers was enshrined in the Civil Rights Act of 1871 in response to worries that the former slave states would violate the civil rights of freed slaves and other disfavored minorities. The end of Reconstruction and the emergence of Jim Crow largely ended the civil rights for minorities in the southern and border states, effectively making the 1871 Act moot. To launch a civil suit, “a black litigant generally had to use white lawyers and their case would usually be decided on by all-white, or almost-all white juries and white judges”.
Things began to change in the civil rights era of the 1960s and the passage of the Civil Rights Act in 1965. Almost immediately, courts reacted to counter the effect of that legislation. In 1967, the Supreme Court literally invented the legal fiction of “qualified immunity” which protects actions which were taken in “good faith” and with an “understanding” they were within the law, even if they were not. In 1987, the Supreme Court drastically expanded this legal fiction, requiring the plaintiff to show that the defendant violated “clearly established law”, not just a violation to their civil rights. There is nothing in the Civil Rights statute that requires such a violation, only that the plaintiffs suffer a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws”. As one legal analyst puts it, “This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit legal misconduct unless they violated ‘clearly established law.’ That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts”.
When the Court said functionally identical facts, it has been interpreted strictly, requiring almost identical facts, which has allowed all sorts of police criminality to be shielded by qualified immunity. In 2017, an officer who killed a man in his own apartment was granted qualified immunity because there was no prior case which had established a clear right not to be shot in your own home. An officer who let his police dog maul an innocent man received immunity because there had not been a prior case that had “clearly established” the right not to be mauled. In California, police seized around $275,000 in cash and rare coins while executing a search warrant, but only reported $50,000, effectively stealing $225,000. The cops were granted immunity because the question of whether police could steal property while executing a search had never been addressed before by the courts. In Texas, prison guards who forced an inmate to sleep naked on the floor of a cell that was almost completely covered in human feces for nearly a week received qualified immunity because “the guards didn’t have ‘fair warning’ that ‘their specific actions were unconstitutional…The law wasn’t clearly established,’ the Court ruled, basing their decision on the length of time permissible to submit a prisoner to such conditions. ‘Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, we hadn’t previously held that a time period so short violated the Constitution'”.
Every time the courts grant qualified immunity, it allows police to repeat the same offense with impunity, knowing there will be no accountability. As one Fifth Circuit judge noted, victims “must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. Heads defendants win, tails plaintiffs lose”.
A Reuters report found that in the last two years, around 57% of defendants were granted qualified immunity in cases involving the use of excessive force by the police. The success of the qualified immunity defense has inhibited the willingness of some civil rights lawyers from actually pursuing cases. As one lawyer admitted, “I have turned down dozens of police misconduct cases and have routinely referred the potential plaintiffs to qualified immunity as a major problem”. Another lawyer says that one must think carefully about taking a police misconduct case when “the chances of obtaining justice are tilted heavily towards defendants”.
The Supreme Court has offered three rationales in defense of the concept of qualified immunity over the years, none of which are grounded in actual law. The Court has used the same argument as our current President, arguing that litigation would be an undue burden on police officers. It has also argued that the threat of lawsuits would deter police from doing their job. Finally, it has argued that it protects police from being bankrupted for doing their job. The reality is that any civil fines incurred in litigation against the police are almost always paid by the government authority they work for – the city, county, or state government – leaving the officer basically unscathed monetarily.
The concept of qualified immunity is being used as a bludgeon against the law and the Constitution that protects American’s civil rights. As Amir Ali and Emily Clark write, “each time the justices have chosen to expand the scope and effect of qualified immunity—whether it be requiring a victim to identify ‘clearly established’ law, allowing judges to refuse to decide whether a victim’s constitutional rights were violated, or ruling that law enforcement cannot even be brought to trial—they have done so not based on law, but based on their ad hoc policy determinations”. Cato Institute’s Clark Neily and Jay Schweikert have argued, “While qualified immunity itself is not a constitutional rule, it vitiates the very statute that was intended to protect all persons in the United States in their rights, and to furnish the means of that vindication”.
Thankfully, there finally seems agreement on both the left and the right that the problems with qualified immunity must be addressed. Supreme Court Justice Sotomayor has written about “the culture this Court’s decision supports when it calls it reasonable—or even reasonably reasonable—to use deadly force for no discernible gain and over a supervisor’s express order to ‘stand by’. By sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow”. Justice Thomas has been even more direct, expressing his desire to “reconsider our qualified immunity jurisprudence”. Luckily, there are still at least ten cases currently in front of the Court in which they could do that.
Until such time, however, police will continue to act with impunity and more defenseless Americans will die or be abused, primarily African Americans and other less powerful minorities. Beyond the special protections they receive from their own departments, prosecutors, and grand juries, qualified immunity basically gives police a license to kill, a license to steal. That power, combined with America’s history of racism and the police’s traditional role as enforcer of that racism, is why we are where we are today.
As usual, Trump has only made a bad situation worse. From the beginning of his campaign in 2015, he has incited political and police violence. Early on, his DOJ abandoned oversight of rogue police departments. And the current Civil Rights division is more interested in pursuing fictional discrimination cases against car washes and RV owners because of the pandemic lockdown.
The lack of accountability for police speaks to the broader issue of the lack of accountability for the powerful across our whole society. As Andrew Yang tweeted, “One reason things seems so bleak is that there is so little accountability. Crash the economy? Bonuses and bailouts. Kill a jogger? Walk free for weeks. Botch a pandemic? It’s politics. Kill a man arrested for a nonviolent crime? People are fed up”. Indeed. And the protests over the last couple of days show we may have finally reached our breaking point.