Two things need to happen to start the process of reducing police brutality. Well, three things, but “having police officers who are not racist” doesn’t seem like a thing worth hoping for. So, given the immutable dastardly makeup of our current police forces, two legal changes could bring them to heel: changing the subjective standard of reasonableness to a fact-based inquiry, and piercing the veil of qualified immunity.
I’ve discussed before the problem with cops who “fear for their life.” I think we should live in a world where the cops have to be reasonable in fact. It’s not enough to “think” you have a gun, you better actually have a gun before they start shooting, otherwise the cop should go to jail.
But for those who have never been slammed into the hood of their car, as I have, or represented someone who has, qualified immunity can seem a little trickier. It is the cops’ “get out of jail free” card. Even if agents of the state can be shown to have acted in violation of your Constitutional rights, qualified immunity says that they cannot be held accountable, unless they violate a “clearly established” law.
For reasons passing understanding, things like beating you or shooting you, do not count as “clearly established” violations.
The Supreme Court, both parties, have eagerly expanded the scope of qualified immunity in recent years. This doctrine makes the Constitution nearly unenforceable, after the fact. Why would an officer bother to get a warrant if he and his department can’t ever be held liable for failure to act within the strictures of the Fourth Amendment?
Well, Judge Jack Weinstein of the Eastern District of New York has had about enough of that.
In 2014, NYPD responded to a 911 call of child abuse. The call was unsubstantiated (and later found to be fabricated). A man, Larry Thompson, answered the door when the cops arrived. They asked to come in, he asked to see a warrant. They didn’t have one. Instead, they busted in his door, and started beating and kicking him. Judge Weinstein decided that the officers were not entitled to qualified immunity. From The New York Law Journal:
Qualified immunity has recently “come under attack” as being too protective of police officers and standing at odds with the original intent of Section 1983 of the federal civil rights statute, U.S. District Judge Jack Weinstein of the Eastern District of New York said.
“The law, it is suggested, must return to a state where some effective remedy is available for serious infringement of constitutional rights,” Weinstein said.
Weinstein said he finds the U.S. Supreme Court’s expansion of the doctrine in police brutality cases “particularly troubling” and that it protects “all but the plainly incompetent.”
Cops will undoubtedly fight the ruling until they can get an appellate court to give them back their right to ignore the Constitution. They’ll take it right to the Supreme Court, on which sits an illegitimate 9th justice hand picked by conservative forces. Cops cannot afford for the veil of qualified immunity to be pierced, because then citizens would have a way to make them pay for their brutality.
I don’t think Judge Weinstein will win this battle, but it is the fight worth having. Getting at qualified immunity is a key want to stop the terror dispensed by American police officers.
Elie Mystal, Jun 12, 2018, “At Least One Judge In Brooklyn Knows How To Stop Police Brutality”, https://abovethelaw.com/2018/06/at-least-one-judge-in-brooklyn-knows-how-to-stop-police-brutality/