Barry Fagin (copy)

Unknown to many, one small ray of hope was shining through the clouds of America’s race problem before the thunderstorm of George Floyd’s murder. The Supreme Court appeared ready to reevaluate one of the most pernicious legal ideas of modern times: the doctrine of “qualified immunity.”

Qualified immunity basically protects government employees, including law enforcement, from facing the consequences of their actions, even if they break the law. Yes, you read that right. It doesn’t mean that state actors can get away with murder. That only happens sometimes. But the standard victims must meet (a violation of “clearly established law”) is so high it renders convictions next to impossible.

Basically, courts can rule that a plaintiff’s rights have been violated (like, for example, when they get killed), but too bad for them. If no one’s rights have ever been violated in exactly that way before, not much the law can do about it. Thanks for playing. Here’s a copy of our “Justice Is Blind” board game for you to take home.

Qualified immunity is what legal professionals call an “atextual” doctrine, an idea that is not rooted in the actual text of the Constitution or an existing law. Basically, the courts made it up, starting about 50 years ago. Since then it’s been clarified and refined through many court decisions, Supreme and otherwise.

In fact, qualified immunity is not only atextual, it contradicts the text of America’s first and most important set of civil rights laws, passed after the Civil War. Designed to fight the KKK and to protect the rights of newly freed slaves, “Section 1983”, as these acts are now commonly referred to, is very clear. It says that any person who subjects someone else to the loss of any “rights, privileges, or immunities secured by the Constitution and laws” shall be liable to the injured party. That means the victim can sue for damages in a court of law, and should win if the court determines rights have been violated. Period. End of story.

Like any legal theory, qualified immunity has its defenders. Some argue that if government employees are liable for damages if they break the law, it will make public service too risky. Police officers must make quick decisions in life-and-death situations, and shouldn’t be forced to worry about getting sued, fired or jailed when their lives are on the line. Repealing qualified immunity, some believe, would create incentives for frivolous lawsuits by plaintiffs who just want money and the pleasure of getting back at a system they think is out to get them.

The problem with these arguments is that no other profession that takes risks with human lives gets the free ride that qualified immunity provides. A bad lawyer can be disbarred and even jailed if they break the law. Doctors can lose their licenses and go to prison if they screw up bad enough. That’s why they have specialized training and carry liability insurance. In fact, we as a society want close scrutiny on every profession that touches human life. Particularly where civil rights are concerned.

Qualified immunity also needs to be examined on the basis of the culture it has helped to create. Incentives matter. It doesn’t make people racist, but it does give racists a toehold if they know they have full license to violate the rights of those they despise. Ask yourself: How you might behave if you were part of a culture where chances were pretty good no one was going to hold you accountable?

Gutting qualified immunity won’t bring George Floyd back. Or Michael Brown. Or Freddie Gray. Or Eric Gardner. Or any of the thousands of victims whose families will never see justice done thanks to this pernicious legal fiction. Nor will it eliminate racism from law enforcement, or indeed from any profession. What it will do is start the long, slow process of creating a culture of accountability, an essential component of every profession in civil society.

The Supreme Court had originally scheduled several qualified immunity cases for a hearing on May 15. As of this writing, these cases have been delayed numerous times, postponed yet again just a couple of days ago. I suspect the murder of George Floyd has made the court a little skittish. They might be waiting for the public’s anger to subside.

Here’s hoping they don’t wait too long.

Barry Fagin writes frequently about politics, technology, and public policy, and has won national awards for teaching and political activism. Readers can contact Fagin at barry@faginfamily.net.

Barry Fagin writes frequently about politics, technology, and public policy, and has won national awards for both teaching and political activism. Readers can contact Dr. Fagin at barry@faginfamily.net.

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