- While it may sound like a film
starring Denzel Washington and Glenn Close,
qualified immunity is one of the main reasons
police can act like the law doesn't apply to them.
Because in a very real sense, it doesn't.
Over the past seven years,
the number of people killed by American law enforcement
has been depressingly consistent.
There've been over 1,000 police killings each year,
and around 10 percent of those killed were unarmed.
Meanwhile, the number of police officers
convicted of murder or manslaughter
has yet to reach double digits in a single year.
So while it may seem like the individual police
who were involved in this year's slate of police killings
are the only criminals,
the truth is the whole system is guilty as hell.
In our last episode, we looked at how the police
are only the tip of a whole broken and unjust iceberg.
Today, we're examining how violent police officers
can call the court system for backup
after they've killed or harmed someone.
To understand how this works,
I'm going to have to introduce you
to one of the worst two-word combos in the English language.
- No. No. Yup, qualified immunity.
Now, before we discuss that,
there are three things we need to understand
about how the police and the court system
work together to cover up
most police violence and wrongdoing.
It's kind of like that police procedural
that's employed more actors
than every New York cafe combined.
Except a more accurate title would be 'Flaw & Disorder.'
First is the fact that, as we mentioned last episode,
the Supreme Court upheld a police officer's right
to use lethal force if they think a person
might be a threat.
This is one of the main reasons why, of the 6,800 civilians
killed by police between 2013 and 2018,
only 1.7 percent of those officers were charged with any crime.
This is a very sturdy foundation that allows police
to largely do what they want,
including brutalize and murder, without ever going to trial.
Next is the fact that our justice system functions
so that prosecutors and police
are typically on the same team.
So when you consider how often police
are needed as witnesses in a prosecutor's other trials,
and how closely they work together
in almost every other case,
you might start to notice that, maybe,
there's a conflict of interest.
It's kind of like playing baseball against the Yankees,
only the umpire is the team manager
and the Yankees are legally allowed to murder you.
Beyond that is the fact that, in most of the country,
the police are responsible for investigating
the misconduct of their colleagues, aka their friends.
For example, Derek Chauvin,
the officer who killed George Floyd,
had 17 complaints against him
over the course of his 19-year career,
and 16 of those complaints were closed without discipline.
Now that we've got that covered,
let's get into qualified immunity.
Much like baby boomers or 'Star Wars,'
the power and scope of qualified immunity
has only expanded since the '70s.
And spoiler alert, it's definitely the dark side.
Qualified immunity first emerged in 1967
during Pierson versus Ray.
The Supreme Court's rationale was
to protect law enforcement officials from lawsuits
and financial liability in cases where they acted
in supposed good faith, which seems shady, but okay.
In 1982, qualified immunity was expanded
to protect police and government officials
from criminal and civil repercussions
unless the conduct was clearly established
as unconstitutional and unlawful. Getting worse.
In 1986, it was reinforced to protect, and I quote,
"All but the plainly incompetent
"or those who knowingly violate the law."
Oh, that's bad.
So today it effectively means,
officials can only be held liable
if a federal court of appeals or the U.S. Supreme Court
has already found that an officer
violated the Constitution
by engaging in exactly the same conduct
under exactly the same circumstances.
In other words, in order for a police officer
to be convicted, there has to already be
a previous court decision that shows a different cop
was convicted of doing the exact same thing.
How exact?
We're talking white people that can recite
every lyric of 'Hamilton' exact.
In 2019, the Sixth Circuit U.S. Court of Appeals
decided that Tennessee cops
who allowed their police dog to bite a surrendered suspect
did not violate clearly established law.
Because even though there was case law
making it illegal for police dogs
to attack surrendered individuals,
in the Tennessee case, the man was sitting on the ground
with his hands raised instead of lying down
like in the previous case.
And if that sounds like our judicial system
is splitting more hairs than a queen
in a 'Drag Race' sewing challenge, it's because it is.
And in February, the Fifth Circuit U.S. Court of Appeals
held that a Texas prison guard
was granted qualified immunity
because he pepper-sprayed an inmate in his locked cell
for no reason, instead of hitting and tasing an inmate
in his locked cell for no reason,
which, you know, is a huge difference.
Qualified immunity has also been granted to
officers who stole $225,000 from local businessmen,
a cop who shot a 10-year-old
while trying to shoot a nonthreatening family dog,
and police who destroyed an Idaho woman's home
with grenades rather than searching it
for a suspect who wasn't there.
At this point, qualified immunity is so absurd
a police officer basically has to travel back in time,
commit the awful act in the past,
be arrested and convicted in the past,
travel back to the future, and do the exact same thing again.
Which is like an even worse version of the movie 'Timecop,'
and, trust me, that movie was bad.
This is why, even when police are investigated and charged,
they rarely go to jail and are immune to civil suits.
Instead, these charges are just a symbolic attempt
to alleviate tensions with those calling
for what feels like some semblance of accountability.
Simply put, the courts won't end police violence
because the courts themselves are part
of the same unjust, criminal legal system.
Remember the cycle I talked about last episode?
Yeah, this is why police violence is such a complex issue.
But I'm not saying all of this to be depressing,
nor do I think the desire to see dangerous, violent cops
go to jail is wrong.
And I gotta be honest,
there is a very large part of me
that wants to see those officers locked away.
But there can be no justice for the murdered
when the police are still creating more names.
The justice we really want is
for this to never happen to anyone again.
As a society, we're kind of addicted
to justice as punishment, but defaulting to imprisonment
should not be the only definition.
I mean, how is it that we have six 'Law & Order' spinoffs
but only one solution for achieving justice? Seriously, six.
But thanks to decades of work from activists,
we're starting to see the fruit
of a growing cultural movement, where people are refusing
the 100-plus years of subpar reforms
that don't work and have been recycled
and repackaged time and again.
Instead, many activists are opting
for a transformative shift
away from police, jails, and prisons.
In the case of Breonna Taylor,
a medical worker who was killed by police
during a no-knock raid of her home
in the middle of the night,
activists have put forth multiple ways
to fight police violence that don't rely
on the prison industrial complex.
These ways include immediately firing the officers
and making sure they cannot be hired
at other police departments;
supporting Breonna's partner, Kenneth Walker,
who is fighting for immunity after using his firearm
during the police invasion of their home;
supporting the Louisville community bail funds,
as they bail out those arrested
for protesting Taylor's murder;
and working to defund
the entire Louisville Metro Police Department.
And already Louisville has banned
no-knock warrants in the city,
fired one of the officers involved,
and the charges against Kenneth Walker were dismissed,
which is progress.
When it comes to community safety,
there are new possibilities on the horizon,
rooted in care, healing, and transformation,
not vengeance, control, and violence.
And these are ideas that we will explore
in the coming weeks.
Thanks for watching,
we'll see you next time right here on Decoded.