Now that Derek Chauvin has closed out his defense of killing George Floyd by invoking his Constitutionally-protected right against self-incrimination — the Fifth Amendment — we who still care about such things can shake our heads at the farcical injustice that has framed this case, and all the other cases involving unnecessary police force protected by the Supreme Court’s gift to fascists, known as Qualified Immunity.
Cops like Chauvin are vigilantes with badges, but without the white sheets. (Recall, if you will, that many of the folks under those KKK cloaks were ‘respectable’ members of the community — cops, judges, smiths, bartends, etc.) They’ve been guaranteed that, if they snuff the life of a fellow citizen, they will get their day in court. With a virtual guarantee of getting off the charge if they can successfully invoke Qualified Immunity.
It’s this stark contrast of legal entitlements, this notion that you’re nothing at the hands of these flag-waving monsters, while they enjoy the privilege of protection, involving their Constitutional rights, that flat out rattles and enrages. And when you discover that there’s no remedy — that they can kill, steal your property, and piss on your cat — and you can’t pursue them criminally or civilly, and that little to no internal review of their actions will occur, then you have a right to wonder if America operates as a democracy under the rule of law anymore, and if it hasn’t reached, after “ a long train of abuses and usurpations,” that place in the Preamble to the Declaration where it is our “right” and “duty” to “throw off such government.”
In Above the Law: How “Qualified Immunity” Protects Violent Police, ice cream magnate and activist Ben Cohen serves up an unwaffling cone of Wiggly Piggly with jimmies, taking its place somewhere between Cherry Garcia and Chips Happen. In 150 pages of well-selected spoon-sized samples of police abuse dipped in QI nuttery, and explanations of how police are gaming and shaming the Constitutional protections meant to make us all equal before the law. Because, when it comes right down to it, Cohen demonstrates, Qualified Immunity (QI) is not only evil as a police protection against ‘frivolous lawsuits’ but absurdly illogical — circular Catch-22 “rules” apply that make it impossible to battle in court, and thus, a guarantee that QI abuses will continue, and, left unchecked, will foster the already fascist leanings of law enforcement in America.
Above the Law has multiple authors — victims, cops and lawyers– and is broken up into about 20 short chapters of incidents and anecdotes and court decisions and remedies. It’s quick-paced, well-edited, and educational. The intelligent reader will find it cogent, reasonable and offering actions that can be supported or accomplished — writing a letter to specific members of Congress to address QI, for instance. You can read the book in a couple of hours, get all fired up with principles, and get the letter off to Congress on the same day.
In the Foreword to Above the Law, rapper Michael Render (“Killer Mike”) provides an excellent emotional overview of the events at hand. It’s helpful to recall, with him, his reaction to hearing on the news the take-down of George Floyd, yet another Black man in America at the hands (and, in this case, the knee) of the police. Render remembers,
Looking back on that night, I know that a part of me wanted to watch the world burn, as well. A part of me wondered if it wouldn’t be better than the alternative, of living in a world like this one, where every day it seems I am waking up to watch another Black person die.
Black or white, most non-MAGA Americans can relate to this sentiment. It shouldn’t be happening in a democracy watched over by the rule of law that has been with us since the Magna Carta, and allowed humans to leave the Dark Ages behind and enter the Enlightenment. QI is a backslide.
QI is some crazy shit. You’re not sure you even understand as you’re reading about it, because you start thinking you must be mental when you just don’t get it. That’s the Catch-22 effect. There is no getting it. It’s a gobbledygoo olio of legalese and illogic — like some lampoon of lefty linguistics. With QI, you can only sue or convict a cop if you can prove a precedent had been set. As Ben Cohen writes,
Instead of considering whether a person’s civil rights have been violated, courts shut their eyes to whether a crime has been committed and look only to see if there has been a past conviction of a police officer for doing the exact same thing. Otherwise, it gets thrown out of court.
But this is an impossible hurdle to get over for a plaintiff. Cohen continues,
If you can only bring a case to trial if there’s already been a precedent for an exactly identical case, how do you create a new precedent? You can’t. In legal jargon, the law is “frozen.
Frozen Wiggly Piggly with jimmies.
Cohen,and others repeatedly point out that Qualified Immunity is at, at heart, not a police procedural issue but a Constitutional crisis waiting to happen. The three branches of government — Judiciary, Executive, Legislative — are meant to act as checks and balances to each others’s powers. In 1871, following a few years of former slave states trying to re-enslave African-Americans using “sheriffs,” Congress passed the Civil Rights Act (14th Amendment) to address such injustice and disguised criminality by making it a federal cause, overriding states that wanted to re-enslave despite the outcome of the Civil War.
In a chapter titled, “A Perverse Irony,” Ben Cohen explains the Problem and the Solution:
In 1871, shortly after the end of the United States Civil War, Congress recognized a growing crisis for post-slavery Reconstruction: police and other public servants were discriminating against and brutalizing Black people. To address it, Congress passed a series of laws that came to be known as the Ku Klux Klan Acts—a reference to the fact that many of those police and public servants were members of the Klan. Officially titled the Civil Rights Act of 1871, the law provides that a person who was discriminated against or brutalized could sue the public employee who broke the law by violating their rights.
Thus, the racial profiling connected to QI is, at the least, a throwback to the slaver days. In this context, a cop might see George Floyd as ‘uppity’ instead of merely a suspect in an alleged counterfeiting transaction at a convenience store.
It opens up other old wounds, too, resentments and festering mindsets that came when Abraham Lincoln signed the executive order, known as the Emancipation Proclamation, in September 1862, after the Civil War had begun. Most Americans have signed on to the idea (because it’s what they teach us in grade school) that Abe freed the slaves. But, unfortunately, it’s not that simple. Lincoln’s executive orders, including the Proclamation, were reversible by the next president (think: Biden reversing Trump’s orders on Day 1). But perhaps more germane to the current QI problem is that the Proclamation was seriously flawed. It only applied to Southern slave states; Northern states with slavery were unaffected. Look at the map below that delineates this discrepancy:
As Richard Hofstadter noted, the Proclamation was ridiculed because it only applied to slave states still in secessionist rebellion at the time, border slave states, such Maryland, Missouri, Delaware, and Abe’s home state, Kentucky, were exempted by the Proclamation (Striner, 2006). One can imagine how such an arrangement led to resentment at federal powers, and how QI, administered state by state, could be tough to eliminate and require federal intervention.
Above the Law details illegal and sometimes absurd searches and seizures of property, gross violations of civil rights, brutal arrests — often mistakes or overreactions. This is the same stuff that was going on at the end of the Civil War that the 14th Amendment (and the 8th Amendment) was meant to address and eliminate. Victims could seek redress against such behaviors, both criminal and civil. But Cohen notes that the Supreme Court led the way in eroding the protections guaranteed by the Amendment:
…in a series of decisions from 1967 to 1982, the Supreme Court gutted the Ku Klux Klan Act by creating out of whole cloth the legal defense of qualified immunity…Instead of considering whether a person’s civil rights have been violated, courts shut their eyes to whether a crime has been committed and look only to see if there has been a past conviction of a police officer for doing the exact same thing. Otherwise, it gets thrown out of court.
.But establishing such precedents is circular and absurd; cops walk, smiling.
Above the Law provides one example after another of the legal inanity that protects police. In “Surrendering While Black,” silliness prevails. Alexander Baxter, a homeless Black man, was caught in a B&E and cornered in the basement by police, a K9 dog circling him. He sat there with his arms raised in surrender. “Then, without warning, the officer sicced the dog on him” and dog ripped at Baxter’s armpits leading to his being rushed to a hospital. Baxter sued. Such an incident involving police releasing their dog had happened before:
But at trial, the judge ruled that since in the previous case the suspect had surrendered by lying down, and Alexander had surrendered by sitting on the ground with his hands up, that the cases were not similar enough. So the judge invoked qualified immunity and let the cops off scot-free.
It turns out that such absurdity is not an isolated case. It’s baked in.
In another case, “School Drop Off,” a 33-year old Malaika Brooks, pregnant and with a child strapped in the back seat, was pulled over for a minor traffic incident and handed a ticket that she was told by the cop to “sign.” When she refused repeated attempts to get her to sign (neither a requirement or violation of a law), the cop called for back-up and hell broke loose. She refused to get out of the car:
In less than a minute, the cops tased Malaika three times, sending 50,000 volts into her thigh, arm, and neck. They gave her no time between tasings to reconsider her actions or agree to get out of the car.
Then they dragged her out of the car, put her face down and arrested her. Malaika sued and won, but the decision was reversed on appeal, the judge allowing QI. No precedent.
In “Sleeping While Black,” Luke Stewart is apparently sleeping off intoxication, car parked legally, when cops come upon him sleeping, open the door without identifying themselves as cops, and, after Luke panics and begins to engage the engine, gets tased, punched in the face and, finally, shot a few times. Bam: The Big Sleep. His mother sued the cops for civil rights violations, but the judge “accepted [the intruding Officer] Rhodes’ claim that he was justified in killing Stewart because he feared for his life — in case Stewart crashed the car or kidnapped him.” QI.
In “Search and Steal,” we read of Micah Jessop and Brittan Ashjian being served a warrant by police to search their business premises. Surprised, because dumbfounded, they stepped aside while police ransacked their space looking, ostensibly, for evidence of money laundering and illegal gambling. The two weren’t charged, but:
The cops claimed they seized $50,000. But according to Micah and Brittan, the cops took $151,380 in cash and another $125,000 in rare and valuable coins. Micah and Brittan filed a complaint with the city, but they never got their money back.
The cops pocketed the money. The pair sued the cops, but a judge sided with them, preposterously giving them QI, which overrode any question of their criminality in taking the money. Brittan said after the trial,
“This is upsetting to know that if the police have a search warrant that’s valid, they could steal your things and you don’t have the ability to pursue it.” Indeed.
In “Broken Home,” Shaniz West is the victim of a WTF incident. She came home with her kids in tow to find cops surrounding her house, looking for her wanted boyfriend. She handed them the keys and went off while searched:
But the cops didn’t use the keys. They called in a SWAT team, who bombarded the house with tear gas canisters. They shattered windows, kicked in the back door, and ransacked the house. They tore through every room, smashing appliances, overturning furniture, knocking holes in the walls and the ceiling, and leaving behind toxic tear-gas residue all over Shaniz’s family’s possessions.
They utterly destroyed the innards of her home. No sign of the boyfriend inside the wall. WEst sued and lost, but “Since there was no previous case in which officers were found guilty of the exact same offense, the court granted them qualified immunity.”
On and on it goes, story after story, until your punch drunk from the police abuses. It’s like watching a fight where an aggressive boxer repeatedly punches his Black opponent below the belt in his constitutionally protected hairy walnuts. Ouch. And the referee warns the victim for the infraction. You double-take. You go huuunh? And the crowd stands in awe. And the ref shugs, “Den’s da roos.” By the time you read this review chances are there’ll be another Black Man Down.
Eliminating QI also has the support of many law enforcement officers. Toward the end of the book, Cohen brings in a retired cop (of 35 years) to refute the notion that
if the doctrine [of QI] is eliminated to the point where there is no threshold and every case goes forward, police officers will start to hang back and avoid risky situations, even if it means criminal behavior goes unchallenged…Yes, law enforcement will always have some “bad apples” for whom all the training in the world will not turn them into “good cops,” but continuing to afford them the protection of qualified immunity for their egregiously wrong actions is antithetical to the rebuilding of community trust that is so badly needed at this time.
The more the incidents pile up, the more we head toward a violent confrontation with the State.
Recently, the Washington Post ran a piece on police shootings in the US that graphically details both the steady rise of shootings and drawing the conclusion that “Black Americans are killed at a much higher rate than White Americans.” It’s not simply a left illusion:
There’s a lot of insurrectionist fervor afoot today in America. On January 6, the nation got a taste of MAGA bizarro patriotism from the right (I guess: I mean they were co-opting Bob Marley songs; Proud Boys is named after a fuckin Disney tune; QAnon — Synanon Village full of queers (in the old sense, you know oddcuts and misfits)?). Had it been antifa (as Trump was trying to push) or, God help us, Black Lives Matter, there would have been blood and peaceful demonstrators would have been mowed down like cole slaw, to quote the Rifleman. It makes your hair stand up like Kramer’s because there’s talk that this virtual clown show assault could result in tighter domestic security allowing cops to have their way with us even more.
Cohen provides an excellent summary of the Derek Chauvin trial — the incident, the charges, and the stakes for the national community — on his ice cream website, where he maintains a blog of he and Jerry’s social causes. He urges action to end QI. He provides information for whom contact. Afterward, gather a bunch of like-minded buds and go find a Ben and Jerry’s joint and lick that Wiggly Piggly right out of existence (but eschew the fascist jimmies, would be my reco).
Finally, Cohen tells the reader:
“All royalties from this book go to the Campaign to End Qualified Immunity. To learn more or to make a donation, visit our website at campaigntoendqualifiedimmunity.org”