In the United States Senate, there is a single African-American Republican Senator; he is Tim Scott of South Carolina.
In the United States, one of the greatest enablers of police sense of impunity when using lethal force when dealing with African-Americans, women or men, is the doctrine of ‘Qualified immunity.’
Qualified immunity is not to be found in the US Constitution. It is a [practice] validated by the US Supreme Court, yup, there we go again, that court.
(1) WHAT IS QUALIFIED IMMUNITY?
In the United States, qualified immunity is a [legal principle] that grants government officials performing discretionary functions immunity from civil suits unless the plaintiff shows that the official violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” (W)
(2) HOW DOES IT WORK?
Under qualified immunity, government workers can only be held accountable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists — or it exists, but just in another jurisdiction—the official is immune, even if the official intentionally, maliciously, or unreasonably violated the law or Constitution.
(3) WHAT DOES IT TAKE TO SHOW THAT A RIGHT IS “CLEARLY ESTABLISHED”
To show that a right is clearly established, a victim must identify an earlier decision by the Supreme Court or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If no decision exists, qualified immunity protects the official by default. For example, the Fifth Circuit U.S. Court of Appeals recently held that a prison guard who pepper-sprayed an inmate in his locked cell “for no reason” did not violate a clearly established right because similar cited cases involved law enforcement officials who had hit and tased inmates for no reason, rather than pepper-spraying them for no reason.
The clearly-established test requires a victim to identify a nearly identical earlier decision by the Supreme Court or a federal appeals court in the same jurisdiction. This means that courts will sometimes hold that a government worker’s actions violated the Constitution and then use qualified immunity to let him off the hook. But often, courts do not even address whether a government worker violated the Constitution. Thanks to the Supreme Court’s 2009 decision in Pearson v. Callahan, courts may decide cases without addressing whether the actions at issue violate the Constitution. Such a system fosters what some scholars call “constitutional stagnation” since courts may ignore the underlying constitutional issues and decide cases under qualified immunity.
For instance, when a police officer shot a 10-year-old child while trying to shoot a non-threatening family dog, the Eleventh Circuit U.S. Court of Appeals held that the officer was entitled to qualified immunity because no earlier case held it was unconstitutional for a police officer to recklessly fire his gun into a group of children without justification. The Court also declined to establish that rule. Not only was the officer let off the hook in that case, but the very same officer could act the same way again and would still be entitled to qualified immunity.
In other words, the court’s desire to protect police from accountability is so strong that it makes no pretense about making common-sense rulings. Neither is it concerned about the blatant inconsistency that obtains with its position.
Such is the rule established by the court that enables and empowers police to violently abuse, maim & kill with the ultimate belief that they cannot be held accountable.
It was the lack of concern that guided Derek Chauvin; it was that lack of concern that guided Jason VanDyke when he put 16-bullets into 17-year-old Laquan McDonald’s body; it is what informed Daniel Pantaleo who choked the life out of Eric Garner as he pleaded and begged for his life, I can’t breathe, I can’t breathe, I can’t breathe until he was dead.
It informs the God Complex of every cop who operates with bravado rather than a desire to serve with respect.
In its 1967 Terry v. Ohio decision, allowing police to conduct searches, known as stop-and-frisks, based on the low legal standard of “reasonable suspicion,” the court placed racialized policing on steroids.
Police were legally authorized to use any concocted reason they chose to stop, search & eventually abuse citizens (usually Black *Brown citizens)to their death.
When looked at as explained in sections 2 & 3 above, qualified immunity literally authorizes police to do as they please to whomever they please without worry that they will face any consequences.
But that is not all; In a 1996 ruling, Whren v. the United States, the court doubled down on its racist 1967 decision. It decided that police are allowed to use minor vehicle infractions as a pretext to initiate traffic stops to investigate other possible unrelated crimes.
Politico reported; In the earlier 1982 case Harlow v. Fitzgerald, the Court made the lethal decision to create the doctrine it called “qualified immunity,” which has since allowed police to injure and kill with little or no consequence unless their conduct “violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known,” a standard that has proven difficult to overcome.
The cumulative impact from these court decisions is that the Supreme Court has broadly empowered police to stop Black drivers and pedestrians under the flimsiest justification. If the officer injures or even kills the person, their families may have no recourse to hold the officer accountable.
In the series of articles I have written, which may be found on these pages, I continue to argue that fighting with police is counterproductive. Demonstrating in front of police stations is basically an effort in futility.
This is not a fight with the puppets; the fight rests with the puppeteers. State legislatures, the congress of the United States, and the courts are responsible for what police do.
In previous articles, I have laid out the instances in its history that the United States Supreme has acted in contravention of the rights and interests of all people and African-American people in particular.
The well-documented hostility of the court to the rights of Black people is an undeniable reality. The highest court has squandered resectability, validity, and authenticity on the altar of racial animus in its rulings, the latest earth-shattering iteration being the 2013 Shelby county Alabama vs. Holder stripped away section 4 (b) of the voting rights protections enshrined in the 1965 voting rights act.
Time and again, the highest court has demonstrated that at the head of white supremacy and all it stands for sits the United States Supreme Court.
Whether the United States Senator from South Carolina is conversant with these facts eludes me. Nevertheless, Senator Tim Scott opposes doing away with qualified immunity.
Mike Beckles is a former Police Detective, businessman, freelance writer, black achiever honoree, and creator of the blog mikebeckles.com.