by Grace Garrett
In recent weeks, Americans have collectively grappled with the deaths of Breonna Taylor, George Floyd, and other victims of police violence. We have come to expect that there will be no justice for victims of police violence, and we join with the platform of the American Solidarity Party in our demands that “law enforcement officers should be . . . held to the highest standards of professionalism . . . [and] strict accountability for the use of lethal force.” While the failure of the criminal justice system to hold police officers accountable is the subject for another essay, the failure of civil courts to hold police officers accountable by providing a modicum of relief in these cases is baffling. Many are rightly asking, “Why can’t you successfully sue a police officer who attacks you or a family member?” The answer is “qualified immunity.”
Qualified immunity is a legal principle that shields government officials, including police officers, from civil liability for actions taken in the performance of their job, as long as those actions do not knowingly violate anyone’s legal rights. Of course, the Fourth Amendment (among other laws) very clearly establishes one’s right not to be brutalized by the police. So, what gives? To understand this issue, we need to look a little deeper into the history of the Supreme Court’s treatment of qualified immunity.
The current legal test for whether a government agent is entitled to the protection of qualified immunity was introduced in Harlow v. Fitzgerald, 457 U.S. 800 (1982). As with so many unpleasant incidents in modern American history, this one was Richard Nixon’s fault. A contractor named A. Ernest Fitzgerald sued Nixon and several of his aides for whistleblower retaliation; the Court decided that, while Nixon himself had “absolute immunity” from civil liability for his actions as president, his aides were entitled to “qualified immunity.” The Court viewed this qualified immunity as essential to the government’s ability to function without its officials being paralyzed by the fear of civil lawsuits, and provided a two-pronged test for when qualified immunity would apply, stating, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.” Hold onto the phrases “clearly established” and “reasonable person,” as they are critical to understanding why this legal concept is currently operating against the interests of justice.
The definition of a “clearly established” right for the purposes of qualified immunity has been discussed at great length over a number of cases since the test was established in Harlow v. Fitzgerald, but for this discussion, we’ll zero in on Kelsay v. Ernst, 933 F.3d 975 (8th Cir. 2019). Melanie Kelsay, her children, and her friend Patrick Caslin were at a public pool. While they were goofing around, Mr. Caslin tried to throw Ms. Kelsay into the pool. Some bystanders interpreted this as assault and called the police, who arrested Mr. Caslin. Ms. Kelsay spoke to the responding officers in an attempt to prevent her friend’s arrest and then started walking toward a stranger who was speaking with one of her children. It is noteworthy that Ms. Kelsay is described in court documents as being five feet tall and 130 pounds. Deputy Matt Ernst then performed a “takedown maneuver” on Ms. Kelsay which broke her collarbone and rendered her briefly unconscious. While the dissent in this case argued that case law has established that the use of force against a nonviolent misdemeanant simply for disrespect is a violation of the Fourth Amendment, the majority opinion held that there was no precise law or a precedent which handled a fact set close enough to Ms. Kelsay’s case to “clearly establish” for a reasonable officer that it was illegal to body slam Ms. Kelsay under these circumstances.
The second part of the test for establishing qualified immunity has to do with the “reasonable person,” or, in the case of police brutality, “the reasonable police officer,” thanks to the infuriating case of Graham v. Connor, 490 U.S. 386 (1989). Dethorne Graham was a diabetic and needed some orange juice to stabilize his blood sugar. He ran into a corner store, but when he saw the length of the line he rushed out of the store. A police officer, M. S. Connor, witnessed Mr. Graham running out of the store and assumed that he had robbed the store. Officer Connor proceeded to try to apprehend Mr. Graham. Mr. Graham’s blood sugar crisis had intensified at this point, and he began running around the officer’s vehicle and then briefly lost consciousness. Officer Connor and other officers who had arrived for backup interpreted this behavior as intoxication and resistance, and slammed Mr. Graham against the police car, handling him in such a way that Mr. Graham left the encounter with an injured shoulder, a broken foot, cuts and bruises all over his body, and persistent tinnitus. In their determination of whether the officers who attacked Mr. Graham were entitled to qualified immunity, the Supreme Court decided that police officers should not be held to the same standard as general members of the community; instead, they held that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.” So, police officers are given leeway in light of the chaos of a given situation. This standard has been applied in many police shootings where the officers have interpreted cell phones, candy bars, and hair combs as lethal weapons and harmed those they encounter on the job.
The path of the doctrine of qualified immunity from a practical necessity for government work to a tool of oppression is a long one, and we could discuss dozens of other seminal cases in a comprehensive treatment of the subject. Hopefully, this article provides a jumping-off point to understand the concept. We have yet to see lawsuits from the families of the most recent victims of police violence, but qualified immunity is likely to play a part in any civil suits they file against the officers responsible. As we watch for updates, let us continue to echo the words of the prophet Amos in our prayers, and ask that God will lead our country to “let justice roll down like waters, and righteousness like an ever-flowing stream!”