Stop Mass (Police) Shootings, Relax Qualified Immunity

Gun violence, generally, is hard to brush under the rug. But when it’s violence at the hands of police, it’s much easier. This is scary, because police are more than twice as deadly as mass shooters. In a U.S. Appeals court decision filed on October 21, the government granted more police officers complete impunity under the standing policy of “qualified immunity,” which protects government officials, like police, from being held liable for crimes they commit and damage they cause on the job. It’s a disastrous decision, and an enormous loss for due process.

The first sentence of the case opinion reads, “If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them.” In essence, this means that when police officers are responding to the scene and have mere seconds to act, their actions should be justified as “reasonable efforts to protect citizens from active shooters.” For instance, in this appeals case, Texas police began firing 17 rounds within just six seconds of spotting a man, Gabriel Winzer (who didn’t even match the description of the shooter). Certainly, it’s true that there should be some margin-of-error for police in high-stakes and fast-paced situations, but that doesn’t mean judges should allow egregious offenses to go unpunished, as they so often do under the guise of “qualified immunity.”

Police officers in America have a lot to answer for. They’ve shot and killed 717 people this year. Mass shooters? Less than half that. The only difference is when mass shooters kill people, they go to jail. When police officers kill people, they often don’t even lose their jobs. Sure, there are certainly cases where police have to kill in self-defense, and many of those 717 people shot by the police may not be innocent. But unfortunately, we may never know — because they never got their constitutional right to a public trial.

The justification for qualified immunity holds no water, anyway. There’s no evidence that qualified immunity prevents crimes like mass shootings, but there is evidence it protects officers who commit crimes. Without fear of consequence, corrupt police have the freedom to steal money, repeatedly tase pregnant women, and hide in closets during an active rape. All this only opens the door to more injustice. When police officers can’t be held accountable, they can do anything they want. You name it: Shoot your son, kill your dog, shoot your son while trying to kill your dog.

So, how’d we let this happen?

Here’s how:

In 1871, Congress passed a bill to create Section 1983 of the U.S. code, our primary federal civil rights statute. Section 1983 was established specifically to give citizens recourse after a state official, such as a police officer, violates their constitutional rights. In fact, it specifically states that officials “shall be liable” to the party injured. But in the late 1960s, beginning with Pierson v. Ray, the Supreme Court nearly burned this section to the ground when it developed the judicial doctrine of “qualified immunity,” which shields state officials from any liability for their misconduct — even when they break the law.

Under the doctrine of qualified immunity, SCOTUS has held that such defendants can’t be sued unless they violated “clearly established law.” However, the courts have taken that to mean that if there’s not a nearly-identical precedent case, an officer cannot be held accountable for their actions. Even if the smallest details of a case are off from a precedent case, that’s enough to fall short of the “clearly established law” provision. Lawyers have legitimately argued that no law was “clearly established” based on the time of day or day of the week the offense occurred.

Of course, most police officers are good people trying to do their job — and that’s what makes qualified immunity even worse. Protecting bad police officers ruins the reputation of all police officers, especially the good ones. When the public doesn’t trust the police, we’re less likely to report crimes or serve as witnesses, making it harder for officers to solve crimes. That’s a double injustice, leaving criminal police officers on the force and leaving unreported criminal civilians on the streets.

And how is that possibly a good thing?

Brenée Goforth works at a state-based think tank in Raleigh, North Carolina and criminal justice writer for Young Voices.