Since 1871, the Civil Rights Act legally liable state and local officials – including police officers – for damage if their actions violate a citizen’s constitutional rights.
That was until the Supreme Court pounded a big hole in the law, making it nearly impossible to hold the police accountable, even if they clearly violated citizens’ rights. Such actions multiplied massively during the era of the “war on drugs”. In the 1970s, state and local police departments increased the acquisition of military equipment and adopted military-style tactics, including the use of special weapons and tactical teams and drug-free drug robberies.
The timing is strange. Just as the police authorities were preparing their bellicose tactics, the Supreme Court established a legal defense – known as qualified immunity – to protect officials who engage in such tactics. By the mid-1990s, according to criminologist Peter Kraska, Ph.D., nearly 90% of US cities with populations greater than 50,000 had SWAT teams, almost twice as many as there were in the mid-1980s.
These SWAT teams have not been idle. Kraska counted about 3,000 SWAT missions in the United States in the early 1980s. In the mid-1990s that number rose to 30,000, most of whom were involved in the drug war. The Supreme Court, however, looked into the legal backgrounds of SWAT officials accused of civil rights violations – the inevitable collateral damage from surprises and night raids on squats.
This is how the qualified immunity gap works:
In 1967 and 1974 the Supreme Court expanded the use of “good faith” defense by law enforcement agencies. Police officers charged with violating civil rights can avoid liability if they believe they have acted honestly and correctly, even if their actions have violated someone’s civil rights. Then, in 1982, the court added the defense of the “clearly established law”. Police officers are only liable if their actions are nearly identical to facts in previous settled cases where courts found civil rights violations occurred.
Since the facts of infringement cases are practical for reasons of being unique – each case has factual differences – it is virtually impossible for plaintiffs to convince the courts that previous cases have clearly identified violations of their rights. The more unusual an infringement, the less likely a previous case has dealt with similar facts and thus fulfilled the clearly defined legal standard.
For example, in 2019 in Corbitt v Vickers, a Georgia deputy sheriff was charged with using excessive force. After a suspect was detained in an apartment, a non-threatening family dog appeared. The MP deliberately shot and missed the dog, instead inadvertently wounding a 10-year-old child in the leg. The US 11th Court of Appeals ruled that the sheriff had qualified immunity and could not be sued as no previous case law addressed the “unique facts of this case.”
In a recent report by the CATO Institute, a libertarian think tank, entitled “Qualified Immunity: A Legal, Practical, and Moral Failure,” author Jay R. Schweikert concludes that “Qualified Immunity is one of the most obviously unjustified legal doctrines in the EU is the history of our nation. “
He counts a large number of judges criticizing immunity, including some calling for an end. In addition, Schweikert reports that Sonia Sotomayor, Supreme Court judge in 2018, described this as “an absolute protective shield for law enforcement that has removed the deterrent effect of the fourth amendment”.
The Supreme Court is responsible for undermining the burden of the 1871 Act on police officers. However, since a majority in the Supreme Court is unlikely to step down anytime soon, Congress must restore the original intent of the 1871 statute.
This is what the legislature is trying to do. On March 3, the House passed the George Floyd Justice in Policing Act of 2021, which was intended to amend the 1871 Act to explicitly prohibit law enforcement officers accused of civil rights violations from using good faith or ambiguous defense Legal defense.
This nation was founded on the idea that governments should secure the civil rights of citizens so as not to threaten and abuse them. Rejecting the doctrine of qualified immunity and making police officers accountable again for their actions would be a good way to reaffirm this fundamental principle of the American government.
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