Qualified Immunity for Police Officers: An Obstacle to Justice

By Vikram Balasubramanian
Vikram Balasubramanian is a freshman in the College of Arts and Sciences at the University of Pennsylvania studying International Relations.

The United States has been struck with an epidemic of police violence, in which citizens deserving of equal protection under the law are unjustly brutalized by police. Yet, whenever someone tries to hold cops accountable, they are unable to. It is nearly impossible to sue a police officer for damages in the United States. In 2009, in Pearson v. Callahan, the Supreme Court ruled that government officials are protected from lawsuits (as an individual) unless the plaintiff can show that the official violated a “clearly established” constitutional or statutory right. [1] This is commonly known as the qualified immunity doctrine. Technically, the government can still be sued for damages caused by the official’s actions. However reasonable this might sound, the way it has been applied in court has resulted in a system in which officers are nearly always unaccountable

​Pearson was formulated with a clear rationale in mind: Officers should not be held responsible for violating rights they didn’t know existed. [2] However, the evolution of qualified immunity has allowed lower courts to skip the murky constitutional questions of whether a right was clearly established, leading to cycles of unaccountable, unconstitutional behavior. Colin Rolfs, a UCLA Law graduate and former editor of the UCLA Law Review explains:

“Rights only become clearly established as a result of a court holding that, on a particular set of facts, there was a constitutional violation. If a court makes no constitutional determination after denying a plaintiff a remedy because the law was not clearly established by a previous decision with analogous facts, a remedy will be denied in a later case with a similar violation, because the right is still not clearly established. In this way, constitutional violations can indefinitely go without being remedied, and officials can continuously engage in unconstitutional conduct.” [3]

Simply put, if a court refuses to make an explicit determination of whether (in this case) an officer’s conduct violated the Constitution (even if the court holds that the officer’s conduct was illegal), a right is not formed, and later cases that deal with the same issue also go unremedied. Thus, unconstitutional conduct can continue forever.

Though the doctrine poses numerous constitutional questions, this article will focus on the impact of qualified immunity on trust with communities that are being policed. The stories of violence against mainly minority bodies raise the question of the legitimacy of the police as an equal arbiter of the laws of the land. The qualified immunity doctrine essentially, by shielding officers from accountability, pits the force that is supposed to protect the populous as an antagonist that was sent in to infiltrate communities and creates an “us versus them” mentality. [4]

First, it is important to know that the issue of police brutality is an issue of anti-blackness. Black Americans are 2.5 times more likely than white Americans to be killed by the police. [5] In fact, the origins of a state-run police force are drawn from slave catcher patrols. A study in the Journal of Criminal Justice Education found that “the literature clearly establishes that a legally sanctioned law enforcement system existed in America before the Civil War for the express purpose of controlling the slave population and protecting the interests of slave owners. The similarities between the slave patrols and modern American policing are too salient to dismiss or ignore.” [6] The slave patrols had no accountability; today, the police don’t either. Unaccountability is the lynchpin of community mistrust.

Today, the issue of police mistrust stems from a lack of positive community engagement and accountability. In high-crime communities, engagement with the police is limited to “high rates of incarceration and community supervision, and concentrated violence.” [7] Due to the qualified immunity doctrine, police officers seem above the law, a paradox when you consider their function is to enforce the law. Though it may be justified in court by some arcane legal detail, in communities it looks like the police are allowed to brutalize and kill community members with no repercussions. The police exist to enforce every law, even though we can undoubtedly say there are some unjust and racist laws. For example, mandatory sentencing laws repeatedly condemn people to unfairly harsh prison terms, such as low-level drug possession crimes being answered with life-long imprisonment. These laws deliberately target black Americans, and the results can be seen in the statistics: “prosecutors are twice as likely to pursue a mandatory minimum sentence for black people as for white people charged with the same offense.” [8] On the surface level, the police have been tasked with disrupting communities and carrying out racist policies. Take, for example, the War on Drugs. In response to the supposed epidemic of weed and crack, the public pressured the Nixon administration to do something. Yet, the laws passed pit low-level minority drug dealers and users against police. Unsurprisingly, these policies have racist origins in the Nixon era. Nixon’s domestic policy chief admitted as much, saying:

“[T]he Nixon White House... knew we couldn’t make it illegal to be either against the [Vietnam] war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.'' [9]

In conclusion, this article will suggest a few reforms to encourage police accountability to curb abuse. Current trends have shown that cops are almost never prosecuted in criminal court, and thus civil court is the right avenue to start reforms. [10] Police officers should not be protected by qualified immunity. Surprisingly, previous research has argued that this would not be detrimental to the government’s function. [11] Allowing civil cases to go to court creates a culture of accountability that will spill over to the rest of the functions of the police. It will be justice and progress. The American legal system is profoundly corrupt and racist, though we hope not irredeemably so. By amending the qualified immunity doctrine, we allow those harmed by the police to have their day in court, to make their voices heard, and work towards justice. This is a starting point, one that is long overdue.

​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] Pearson v. Callahan. 555 U.S. 223 (2009).
[2] Stauber, Anthony. "When is a Right Not a Right?: Qualified Immunity After Pearson." Mitchell Hamline Law Journal of Public Policy and Practice 39 (2018): 125-51.
[3] Rolfs, Colin. “Qualified Immunity After Pearson v. Callahan.” UCLA Law Review 59 (2011): 470-501.
[4] De Stefan, Lindsey, “”No Man Is Above the Law and No Man Is Below It:” How Qualified Immunity Reform Could Create Accountability and Curb Widespread Police Misconduct.” Law School Student Scholarship 850 (2017): 1-29.
[5] Edwards, Frank, Hedwig Lee, and Michael Esposito. “Risk of being killed by police use of force in the United States by age, race–ethnicity, and sex.” PNAS 116 (2019): 16793-16798.
[6] Turner, K. B., David Giacopassi and Margaret Vandiver, “Ignoring the Past: Coverage of Slavery and Slave Patrols in Criminal Justice Texts.” Journal of Criminal Justice Education 17 (2006) 181-195.
[7] La Vigne, Nancy, Fontaine, Jocelyn, and Anamika Dwivedi. “How Do People in High-Crime, Low-Income Communities View the Police?,” Urban Institute (2017).
[8] Drug Policy Alliance. “The Drug War, Mass Incarceration and Race (English/Spanish),” Drug Policy, January 25, 2018, Accessed October 15, 2019http://www.drugpolicy.org/resource/drug-war-mass-incarceration-and-race-englishspanish
[9] Baum, Dan. “Legalize It All.” Harper’s Magazine, April, 2016. Accessed October 5, 2019. https://harpers.org/archive/2016/04/legalize-it-all/
[10] see supra note 4
​[11] see supra note 4

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