Qualified Immunity: A Policy Analysis

Hello. My name is Alice Benaissa, and I'm here today

to talk to you all about qualified immunity.

I'm going to go into a policy analysis of what

qualified immunity is, um, the history of policing in the

United States, the policy analysis and policy recommendations.

This presentation contains graphic and upsetting details about violence and

brutality by U.

S law enforcement.

And so I just wanted to, um, start the video

by putting that disclaimer out there.

So what is qualified immunity?

Qualified immunity is a legal doctrine established by the Supreme

Court to protect government officials from being held accountable for

misconduct. This doctrine allows police to avoid accountability and civil

court and strips people of their constitutional rights.

So why is this important?

So this is important, because right here in front of

you, this is a list of names of black and

brown Americans who have been murdered by the hands of

the police.

Almost if not all, of these cases the person who

was murdered was unarmed and every single one of these

cases besides George Floyd case, the police officers were not

held accountable.

There was no accountability.

There was no, um there there was no prosecution.

And so this leaves families feeling like they have not

been ableto receive justice for what happened to their loved

ones. And so in criminal court, If police officers aren't

being held accountable, then ah, lot of families look to

civil court Thio hold off like to hold government officials

accountable for their misconduct and abuse.

And so that's why qualified immunity It's so important to

understand, because it is a civil legal doctrine that shields

police officers from accountability.

So now I'm gonna go into a bit of a

historical context.

So qualified immunity was created during the civil rights movement.

In 1961 a group of 15 priests were part of

the Freedom Riders.

They entered a coffee shop in Jackson, Mississippi.

They were then asked to leave.

They refused.

They were arrested for breach of peace and sentenced to

four months and $200 fine in jail.

They peeled this case and it was eventually thrown out.

But later on, the priest sue the police officers and

the judge.

In this case in civil court.

The case goes all the way up to the Supreme

Court, who held that the judge's the judge in this

case had absolute immunity, and the police officers were going

to qualified immunity.

Thus, starting this legal doctrine, the police officers in this

case were believed to have acted in good faith.

And so qualified immunity was started in 1967 by the

Supreme Court and has strengthened over time.

And we're gonna go into another courts, um, or court

cases that strengthen this doctrine.

So this is Ernest Fits Jailed.

He was a deputy in the Air Force who testified

before the Joint Economic Committee in Congress about misconduct within

the force.

He was subsequently fired for whistleblowing.

He then filed in law in lawsuit against government officials

for ruining his career.

Three government officials We're part of Nixon's administration and were

found to have qualified immunity understood the under the Supreme

Court. So this case does something very prominent.

It dramatically strengthens the qualified immunity defense.

Even officials who violate people's rights maliciously will be immuned

unless the victim can show that that his or that

his or her right was clearly established.

Now, this clearly established means that a prior court case

is holding this conduct unconstitutional, so it's very important to

talk about that later, and that there is some sufficiently

similar fax to a prior case.

So since the case since this case, the court has

made it very difficult to satisfy.

Satisfy these standards of clearly established, the victims must point

to a previous case that have the exact same specific

fax and particular conduct.

So essentially, what this means is that government officials aren't

held accountable and police officers are allowed Thio continue misconduct

and abuse without impunity.

So I'm gonna go into a case study that that

kind of explains this clearly established precedent.

So give her a Windsor was a mentally impaired 25

year old black man who was shot and killed by

police in Texas.

The officers were responding to report of a black man

in a brown shirt, firing his gun at mail boxes

in a residential neighborhood.

The officers hid behind a few parked cars and waited

for the alleged shooter.

Minutes later, Gabriel came down the street riding his bike

wearing a blue shirt, and he had a toy gun

in his belt.

Within six seconds, giver was shot 17 times.

Thes officers were going to qualified immunity because, according to

the court.

Although Gabriel is constitutional rights were violated due to the

officers use of deadly force, there was no clearly established

precedent. So this is the danger of clearly established precedent

in this case.

Clearly, constitutional rights are violated.

But because there was no prior court case with the

exact same fax, let that that states that this is

unlawful because it's not their constitutional lens.

Thes officers were going to qualified immunity, and this case

again strengthened qualified immunity and established this clearly established precedent.

And this last case, I'm gonna talk about it ultimately

strengthen qualified immunity to the point where it is today.

So this last case, um, was in the Supreme Court

Pearson verse Callahan, Um, in 2000 and nine, this case

removed the mandatory requirement of this first question.

So prior to Pearson v.

Callahan, they're when ah appellate judge received on their desk

a case involving government officials.

They were It was mandatory.

They asked that they asked two questions to see if

this case would, um, proceed forward.

So the first question was, Was there a constitutional violation

violation? So was their excessive force used in this case.

If the answer is Yes.

Then they move on to the second question.

Does this case violate clearly established precedent?

So what this case did this case that I'm talking

about right now?

This case eliminated the first question.

And so now judges do not do not look at

these cases with the constitutional lens.

They only look at the clearly established precedent.

So this a lot of courts toe easily grant qualified

immunity without really unconstitutionality, and that is very dangerous.

Um, so now I'm going to talk about the implications

of what all of this means.

All this clearly established precedent all the history of these

cases. So from 2015 to 2009, there was an investigation

into 252 appellate cases that involve police brutality.

So now, mind you, this this is after the 2000

and nine case where the that the first question was

eliminated. So judges were only basing the whether to pass

a case forward on the clearly established precedent.

So what this investigation found was that over half of

these cases were granted qualified immunity by the judge, meaning

that this case never went to trial and it was

dismissed so over half the cases.

Ah, judge, because of this clearly established precedent, said Nope,

there was no clear established precedent.

The fax aren't sufficient to another case, and they the

case was dismissed, so it did not move on to

try, allow.

And that's again over half of these cases, the 252

or before even hitting trial, the judge granted him qualified

immunity. And this this is what I mean by it

was very much strengthened by this last court case I

talked about because judges are now being the policy minds

of democracy there, judging thes cases and not allowing them

to afford to let the people decide if they're these

police officers should be granted qualified immunity.

So what are the implications?

The implications of this of all of this of qualified

immunity as it is today?

This clues set this precedent and and and what are

the implications of this in our society?

The first implication is this.

Clearly established precedent freezes law because courts yuan analyzed with

the constitutional lens, so this allows rampant misconduct off police

officers. The second thing qualified immunity does is is in

1975. There was a civil rights act that that said

that if a civil rights attorney wanted to represent someone

in a civil rights case, they would be reimbursed.

If they were successful, they'd be reimbursed for their time.

But a lot of these cases were not successful.

They don't even move on to try ALS and police

officers, um, aren't held accountable.

So civil rights attorneys are very apprehensive to take on

pro bono cases of families who have experienced police brutality.

So qualified immunity allows police officers to act without impunity

to provoke violence and harm on communities of color.

So I'm gonna over here on the right is another

case about that.

I want to talk about eso.

In March of 2019, there were some officers who stole

$225,000 during a search warrant.

This case went to the ninth Circuit Court of Appeals,

and the judge had to grant qualified immunity because they

said that there was no clearly established precedent that police

officers should not be stealing property from people.

So again, the dangers of this is that there is

little incentive to change behaviors, and it's a it's a

horrifying precedent and so reform.

It is not working in this case.

And with that, I want to talk more about the

history of police in the United States.

Because you hear a lot of talk about We need

to reform the police.

We need Thio with the defund the police campaign.

A lot of the counter argument is Oh, no, we

just need more reform anymore.

Trained. But reform is not working.

And one reason is because the history of police is

rooted in racism.

So police were and still used brutal force to control

black Americans.

So slave patrols started in the south and and the

19th century.

And these duties were written into law.

And these were duties that white men would serve on

these patrols and they would be tasked with capturing runaway

slaves. And so this was the start of policing in

America, and so surveillance and abuse were baked into policing.

So this is a badge of a runaway slave patrol

on the left.

Here and on the right is a badge of a

current L.

A P.

D. Sheriff's batch.

So you can see the through line of that.

Although, of course, the police have, um, changed over the

years that the history and the inception is rooted in

racism. And so I want to talk about, um s

I want to keep going with this history.

So after the civil War in emancipation, the k k

K would emerge to force control of black citizens, which

pushed black Southerners north.

And this was known as the Great Migration.

I'm sure you all know about the great migration.

So police officers in the north would police black families

that were coming into these new communities with the racial

norms of white supremacy, which was contempt and violence.

So this problem has been known for a century.

And the question here is this question was posed by

historian at Harvard.

Um, Khalil Mohammad and his question is, do white people

in America still want the police to protect their interests

over the rights and dignity and lives of black brown

indigenous in the Asian populations in this country?

Now, this is a very important question.

This summer, during the uprisings of 2020 after George Floyd

was murdered by the hands of the police, there was

there was some property damage and in the media.

We heard a lot about this, right?

The focus was Oh, the whole foods is bashed in

the oh, there's looting.

But there was no that.

That focus on property is part of the problem, right?

That if we are putting property above people silver, civil

liberties, then then reform isn't going to help us here.

And we have to re imagine a way to keep

our communities safe that do not involve the brutality of

law enforcement and eh, So, yeah, Now I'm going to

go into more of the policy analysis.

So this is a top down policy making The Supreme

Court invented this doctrine, and the lower courts follow this

policy policy, making his ideally supposed toe occur in politically

accountable institutions.

Right? Like we are the democracy of people.

So constituents and the people we elect are supposed to

use the elevate our voices on what we think is

just and this doctrine does does none of that.

It's established from the top Supreme Court, and it is

it is judges that make these decisions.

And the street level bureaucrats are the police.

They are tasked to shoot first and think later and

then that is very problematic.

And so now with my last minute, I just want

to go into some policy recommendations.

So and new Qualified Immunity Act was introduced into Congress,

and this removes the legal shield.

The second thing that I want to recommend is that

we study the police history and change the culture around

police accountability.

You hear a lot about bad apples, and we need

more money for reform.

This is again, is not working, and we need to

re imagine a future that protects people and keeps people

safe and does not disproportionately impact black and brown Americans.

And so with that, I just want to say Thank

you so much for your time, and I really hope

that together we can end qualified immunity.

Qualified Immunity: A Policy Analysis

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