Police, protests and qualified immunity
2 min read

Police, protests and qualified immunity

I don't know that we can ever solve for racism; changing hearts is God's dominion, not mine. But there are things we can do to make abuse of power far more painful for those in positions of authority. That's an important start.
Las Vegas, 2013.

Ugly truth up front: History suggests the protests won't change much.

Miami rioted in 1980. L.A. in 1992, followed by Cincinnati, Oakland, Anaheim, Ferguson, Baltimore, Milwaukee, Charlotte -- a bloody roster with no systemic victories. And it's not a recent phenomenon. Mass race-related violence in the U.S. stretches back over centuries of our history, even to the time before we were a nation.

I don't know that we can ever solve for racism; changing hearts is God's dominion, not mine. But there are things we can do to make abuse of power far more painful for those in positions of authority. That's an important start.

One of the biggest steps we could take: Roll back or eliminate qualified immunity, a 1960s legal construct that today makes it all but impossible for people to successfully sue public officials -- including bad cops and the politicians who won't act against them.

I know: It's wonky. But qualified immunity is a linchpin that allows those in power to violate people’s constitutional rights with virtual impunity.

It means victims of law-enforcement brutality or harassment can't hold offending officers accountable. It means many claims never make it to court in the first place because victims may be less likely to find a lawyer willing to represent them. And it freezes constitutional law. As Fifth Circuit Judge Don Willett described it: Victims of abuse “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.”

Imagine if all that changed.

Bad cop? Coworkers can back an officer up, the police chief can equivocate, the DA can decline to prosecute and the mayor can refuse to take action -- and a victim could potentially sue 'em all into the dirt.

Do it enough times? The system's survival instinct kicks in and begins correcting itself.

We have to make bad cops a much bigger liability -- financially and politically -- than they are today. To do that requires an organized legal assault: A nationwide strategy, the right cases and -- importantly -- knowledge that it might take years to get it done.

The idea of ending qualified immunity has advocates on both the right and left. I hope -- for all our sakes -- someone presses the fight.