• The Star Staff

Qualified immunity protection for police emerges as flash point amid protests

By Hailey Fuchs

Long before the death of George Floyd set off a na- tionwide uproar over police brutality, before protests erupted in 2014 over the death of Michael Brown in Ferguson, Missouri, a 50-year-old man named Wayne Jo- nes took a night stroll through the streets of Martinsburg,

West Virginia.

A police officer saw Jones walking illegally in the road that night in 2013 and asked whether he was carrying a weapon. Jones, who had a small knife, and the police got into a tussle, after which one officer accused Jones of stabbing him. Fifteen minutes later, Jones lay on the ground facedown between a stone wall and five officers, who had fired 22 bullets at his backside.

Jones’ brothers, Robert and Bruce, have tried for years to hold the police accountable for Wayne’s death but have repeatedly run into hurdles: Most recently, the offi- cers claimed they could not be held liable under so-called qualified immunity, an esoteric legal doctrine invoked by police departments across the country for decades in res- ponse to allegations of excessive force. It provides legal protections for officers when they are accused of violating others’ constitutional rights.

Once a little-known rule, qualified immunity has emerged as a flash point in the protests spurred by Floyd’s killing and galvanized calls for police reform. In the vast majority of cases of police brutality, officers are never cri- minally prosecuted. For families of victims seeking some sort of relief through the justice system, qualified immunity presents another obstacle to obtaining financial or other damages. Even in the rare cases where the officers are charged, as in Floyd’s death, the police can still claim qua- lified immunity if relatives or victims sue them.

“Every time across the country that I hear of a new case, I see a news report of another victim, it just opens up the wounds again,” Robert Jones said. “It makes it feel like it just happened yesterday.”

Activists have seized on qualified immunity as what they see as one of the biggest problems with policing and argued that it shields officers from being held accountable in cases of misconduct. Police leaders said it was essential for officers’ ability to respond to calls and to make split- second decisions.

Qualified immunity is a focal point of the new de- bate on Capitol Hill over how to address systemic racism in policing and use of excessive force. House Democrats unveiled a bill that would allow victims of police brutality to seek damages from their assailants. A competing Senate Republican bill made no mention of qualified immunity, and the White House press secretary, Kayleigh McEnany, called it a “total and complete nonstarter.”

State legislatures have taken up the issue as well. The Colorado General Assembly became the first to eliminate qualified immunity this month.

“It’s a message that’s sent in these cases — that officers can violate people’s rights with impunity,” said Joanna Schwartz, a professor of law at the University of California, Los Angeles, who has written extensively on the doctrine. “That is outrageous to people and causing people to act.”

In 1967, amid another era marked by civil rights pro- tests, the Supreme Court introduced qualified immunity to protect government officials acting in good faith — not just police officers — from financial liability. In a case involving clergy members who said they were wrongfully arrested on charges of breach of peace for entering a whites-only bus terminal waiting room, the justices argued that if offi- cers were personally held responsible for their misconduct, it might deter them from performing their duties and ma- king arrests.

The court expanded the protection in ensuing deca- des, and it now covers “all but the plainly incompetent or those who knowingly violate the law,” a rationale offered by the Supreme Court in 1986 in an unlawful arrest case.

As a result, victims and families accusing police offi- cers of brutality must find a virtually identical case where officers were held responsible to cite as precedent in cases where officers claim qualified immunity.

Since Brown’s shooting death by a white officer in 2014 and protests over it prompted a national conversation about racism and police brutality, both liberal and conser- vative justices have expressed doubts about the doctrine.

Justice Sonia Sotomayor wrote in 2018 that the doctrine “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

When the Supreme Court declined last week to take up several cases concerning qualified immunity, Justice Clarence Thomas, the lone dissenting voice, expressed “strong doubts” about the doctrine.

Critics have accused the court of arbitrarily contriving it. At a House Judiciary Committee hearing last week, Rep. Jerrold Nadler, D-N.Y., the committee chairman, said that before qualified immunity was “invented” by the Supreme Court, “the world did not fall in.”

David Cole, the national legal director of the Ameri- can Civil Liberties Union, which filed one of the petitions rejected by the Supreme Court last week, called the doctri- ne “a free pass” for police officers “to violate constitutional rights without being held to account.”

Although the doctrine is intended to protect officers from paying for the damages they cause, he said the result is that officers are more likely to abuse their powers.

“Fiscal concerns are overriding concerns about justi- ce and police accountability,” Cole added.

Advocates on behalf of police insisted that qualified immunity was necessary for officers to protect the public. Its protections allow officers to make life-or-death de- cisions in a matter of seconds, they said, and without it, fewer people might be willing to join police forces.

Republicans in Congress have rejected any change to the broad protection afforded to police officers. Sen. Tim Scott, R-S.C., who sponsored his party’s bill, called De- mocrats’ effort to eliminate qualified immunity a “poison pill.” Republicans’ policing bill would create incentives for departments to use body cameras and ban chokeholds as well as create a system to track misconduct.

Sen. Lindsey Graham, R-S.C., chairman of the Senate Judiciary Committee, did signal an openness to revisiting the doctrine at a committee meeting last week.

“Maybe there’s something we can do with the con- cept of qualified immunity that would put more accou- ntability into the agencies that run police departments,” he said.

Another Republican senator, Mike Braun of Indiana, told reporters last week that he would introduce legis- lation this week to change how qualified immunity was applied.

Wayne Jones’ family won a small victory this month when the 4th U.S. Circuit Court of Appeals ruled that the officers involved in his killing could not claim qualified im- munity. Noting that the FBI had just begun investigating Floyd’s killing, the court wrote, “This has to stop.”

Jones’ relatives are awaiting a decision from the West Virginia Supreme Court about whether they are entitled to see secret testimony given to the grand jury that voted not to indict the officers and whether they are entitled to a new grand jury altogether to investigate the case anew.

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