Republican Tim Scott A Black-skin Folk, Opposes Doing Away With Qualified Immunity For Cops..

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.

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)

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.

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.

Injusticeforjustice writes
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. Callahancourts 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.

U.S. Senate Majority Leader Mitch McConnell (R‑KY) lis­tens as Sen. Tim Scott (R‑SC) speaks to reporters after the Senate Republicans week­ly pol­i­cy lunch on Capitol Hill in Washington U.S., June 23, 2020. REUTERS/​Kevin Lamarque

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 mike​beck​les​.com.