Way back in 2020 and 2021, there was a lot of discussion about reforming policing in America. More often than not, those reforms tended toward a progressive version of a police-free state or at least one where cops were little seen and even rarely heard.
While those ideas have flopped in practice, one idea that should not be abandoned is reforming qualified immunity, a court-manufactured doctrine that:
…protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.
That last part of the definition has allowed courts to build a multi-mirrored funhouse, where government officials can get away with almost anything….unless a court has previously addressed the exact circumstances in dispute.
George Will writes about a case before the U.S, Supreme Court that centers on qualified immunity. And it's a doozy because at the heart of the dispute is elected officials harassing a former colleague for exercising her First Amendment rights:
…the Supreme Court will hear oral arguments as to whether Sylvia Gonzalez…can sue the city officials who, she says, inflicted on her a retaliatory arrest as payback for her criticisms of the city government. A federal appellate court has said she cannot. The Supreme Court is considering Gonzalez's encounter with nastiness because it implicates constitutional guarantees.
This is one of the milder cases related to qualified immunity. As a Congressional Research Service report noted, a key issue reformers of qualified immunity cite is how the doctrine as currently applied undermines the Fourth Amendment:
There is also some concern that the level of specificity required has made it increasingly difficult for plaintiffs to show that the law was clearly established—which some scholars have argued may jeopardize the purpose of Section 1983 as a tool for allowing individuals to recover for constitutional violations. Justice Sonia Sotomayor, dissenting in several cases in which the Court found officers were entitled to qualified immunity, expressed her disfavor with the modern approach, fearing its application essentially provides an absolute shield for law enforcement officers and “renders the protections of the Fourth Amendment hollow.” Some statistics may support this hypothesis: According to one recent study, appellate courts have shown an increasing tendency to grant qualified immunity, particularly in excessive force cases. From 2005 to 2007, for example, the study reported that 44 percent of courts favored police in excessive force cases. That number jumped to 57 percent in excessive force cases decided from 2017 to 2019.
That's a high-level concern. For a more direct and earthy example of the culture that qualified immunity fosters, consider this viral video of a police officer making a “public service announcement” to drivers.
The officer who made the video (on that political bogeyman site TikTok, no less) was suspended from duty without pay. For a single shift.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
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