Some brief definitions and context on policing concepts such as qualified immunity, civil asset forfeiture, how police unions interact with reform efforts, and more.
Qualified immunity is a legal concept that drastically limits how police officers can be held accountable for instances of police violence and brutality. The Appeal, which covers issues of criminal justice, describes how qualified immunity works and summarizes the main criticisms against it:
[Qualified immunity] has become one of the chief ways in which law enforcement avoids accountability for misconduct and even constitutional violations. Ordinary people—whether they’re doctors, lawyers, or construction workers—are expected to follow the law. If they violate someone else’s legal rights, they can be sued and required to pay for the injuries they’ve caused.
Under the doctrine of qualified immunity, public officials are held to a much lower standard. They can be held accountable only insofar as they violate rights that are “clearly established” in light of existing case law. This standard shields law enforcement, in particular, from innumerable constitutional violations each year. In the Supreme Court’s own words, it protects “all but the plainly incompetent or those who knowingly violate the law”…
…even officials who violate peoples’ rights maliciously will be immune unless the victim can show that his or her right was “clearly established.” Since the Harlow decision, the Court has made it exceedingly difficult for victims to satisfy this standard. To show that the law is “clearly established,” the Court has said, a victim must point to a previously decided case that involves the same “specific context” and “particular conduct.” Unless the victim can point to a judicial decision that happened to involve the same context and conduct, the officer will be shielded from liability.
Clark Neily (who runs the criminal justice program at the libertarian Cato Institute) explained to *USA Today* how qualified immunity will impact George Floyd's case:
"If George Floyd’s family sues the police officer who killed him, what they’ll need to do is find a case in the 8th Circuit Court where a police officer jammed his knee against the cervical spine of an unresponsive person for nine minutes until the person died," Neily said. "If they can’t find a case with those exact characteristics, their case is going to get thrown out."
Qualified immunity drastically limits how police officers can be held accountable, even when they violate their police department's policies on appropriate use of force. For more on this, please see:
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The editorial board of The New York Times, four days after George Floyd's death, wrote the following op-ed: "How the Supreme Court Lets Cops Get Away With Murder" on rethinking qualified immunity:
Opinion | How the Supreme Court Lets Cops Get Away With Murder
There is a common refrain from street protesters in the wake of death after death after death after death of men of color at the hands of the police: “No justice, no peace.” In the absence of justice, there has been no peace…
Police officers don’t face justice more often for a variety of reasons — from powerful police unions to the blue wall of silence to cowardly prosecutors to reluctant juries. But it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity from prosecution for actions taken while on the job…
In practice it has meant that police officers prevail virtually every time, because it’s very hard to find cases that are the same in all respects. It also creates a Catch-22 for plaintiffs, who are required to hunt down precedents in courts that have stopped generating those precedents, because the plaintiffs always lose.…
In the five decades since the doctrine’s invention, qualified immunity has expanded in practice to excuse all manner of police misconduct, from assault to homicide.
As the militarization of police tactics and technology has accelerated in the past two decades, pleas from liberals and conservatives to narrow the doctrine of qualified immunity, and to make it easier to hold police and other officials accountable for obvious civil rights violations, have grown to a crescendo…There are few things that Justice Sonia Sotomayor and Justice Clarence Thomas agree on, [but] both have expressed deep concern over the court’s drift toward greater and greater qualified immunity for police officers.
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Civil asset forfeiture is "a process in which law enforcement officers take assets from persons suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing".
Michelle Alexander, previously the Director of the Racial Justice Project for the ACLU of Northern California, clerk for the Justice Harry A. Blackmun on the United States Supreme Court, researched numerous examples of the police abusing this power in her bestselling book, The New Jim Crow.
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