How the Supreme Court Lets Cops

Get Away With Murder

The courts protected police abuses for years before George Floyd’s death. It’s time to
rethink “qualified immunity.”

By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by
expertise, research, debate and certain longstanding values. It is separate from the
newsroom.
• May 29, 2020
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A portrait of George Floyd on a lamppost outside the Minneapolis Police Department’s
Third Precinct station on Wednesday.Credit...Stephen Maturen/Getty Images

A Minneapolis police officer, who was filmed kneeling on George Floyd’s neck for nearly
nine minutes until the life left his body, has been fired, arrested and charged with third-
degree murder and manslaughter. That is a step toward justice. Those who take a life
should face a jury of their peers. But the rarity of the arrest, the fact that police officers
who brutalize or even kill other people while wearing a badge so seldom end up facing
any consequences is an ugly reminder of how unjust America’s legal system can be.

There is a common refrain from street protesters in the wake

of death after death after death after death of men of color at the hands of the police:
“No justice, no peace.” In the absence of justice, there has been no peace.

Demonstrations in nearly a dozen cities, some of which turned violent, erupted in

response to the killing of Mr. Floyd. At least seven people were shot in Louisville.
Windows were broken in the state capitol of Ohio. And a police station was set ablaze in
Minneapolis, where National Guard troops will again patrol the streets on Friday. The
president tweeted early Friday that “when the looting starts, the shooting starts,” which
frames the problem backward. It is not a defense of torching a Target to note that police
abuse of civilians often leads to protests that can spiral out of control, particularly when
met with force.

Police officers don’t face justice more often for a variety of reasons — from powerful
police unions to the blue wall of silence to cowardly prosecutors to reluctant juries. But
it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating
a vital civil rights law to provide police officers what, in practice, is nearly limitless
immunity from prosecution for actions taken while on the job. The badge has become a
get-out-of-jail-free card in far too many instances.
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In 1967, the same year the police chief of Miami coined the phrase “when the looting
starts, the shooting starts” to threaten civil rights demonstrators, the Supreme Court
first articulated a notion of “qualified immunity.” In the case of police violence against a
group of civil rights demonstrators in Mississippi, the court decided that police officers
should not face legal liability for enforcing the law “in good faith and with probable
cause.”

That’s a high standard to meet. But what makes these cases nearly impossible for
plaintiffs to win is the court’s requirement that any violation of rights be “clearly
established” — that is, another court must have previously encountered a case with the
same context and facts, and found there that the officer was not immune. This is a
judge-made rule; the civil rights law itself says nothing about a “clearly established”
requirement. Yet in practice it has meant that police officers prevail virtually every time,
because it’s very hard to find cases that are the same in all respects. It also creates a
Catch-22 for plaintiffs, who are required to hunt down precedents in courts that have
stopped generating those precedents, because the plaintiffs always lose. As one
conservative judge put it in a U.S. district court in Texas, “Heads defendants win, tails
plaintiffs lose.”

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In the five decades since the doctrine’s invention, qualified immunity has expanded in
practice to excuse all manner of police misconduct, from assault to homicide. As the
legal bar for victims to challenge police misconduct has been raised higher and higher by
the Supreme Court, the lower courts have followed. A major investigation by
Reuters earlier this year found that “since 2005, the courts have shown an increasing
tendency to grant immunity in excessive force cases — rulings that the district courts
below them must follow. The trend has accelerated in recent years.” What was intended
to prevent frivolous lawsuits against agents of the government, the investigation
concluded, “has become a highly effective shield in thousands of lawsuits seeking to hold
cops accountable when they are accused of using excessive force.”

The vast majority of police officers are decent, honest men and women who do some of
society’s most dangerous work. They should be forgiven good-faith mistakes or errors in
judgment. But in case after case, well documented now by body cameras and
bystanders, too many bad cops go unpunished for policing their fellow citizens in ways
that often leave them abused or dead. No official tally of deaths at the hands of police
officers is maintained in the United States, a reality that defies common sense in our
hypercataloged society, but estimates from journalists and advocacy groups put the
number of Americans killed by the police north of 1,000 per year. Black Americans are
killed by the police at a much higher rate than white Americans.

When citizens dare to protest police violence, say by kneeling at a sporting event, they
are branded “anti-police” and un-American. With a shrinking recourse in the courts and
a fierce headwind of social resistance to reforming the way the nation is policed, is it any
wonder that many enraged Americans take to the streets — in the midst of a global
pandemic, no less — to demand that their country change?
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As the militarization of police tactics and technology has accelerated in the past two
decades, pleas from liberals and conservatives to narrow the doctrine of qualified
immunity, and to make it easier to hold police and other officials accountable for
obvious civil rights violations, have grown to a crescendo. The Supreme Court is
considering more than a dozen cases to hear next term that could do just that. One
case involves a police officer in Georgia who, while pursuing a suspect, held a group of
young children at gunpoint, fired two bullets at the family dog, missed and hit a 10-year-
old boy in the arm. Another involves officers who used tear gas grenades to enter a home
when they’d been given a key to the front door.

There are few things that Justice Sonia Sotomayor and Justice Clarence Thomas agree
on, at least when it comes to the letter of the law. Both have expressed deep
concern over the court’s drift toward greater and greater qualified immunity for police
officers. (“By sanctioning a ‘shoot first, think later’ approach to policing, the Court
renders the protections of the Fourth Amendment hollow,” Justice Sotomayor once
wrote.) With the next George Floyd just a bad cop away, one hopes the other justices will
be moved to ratchet back qualified immunity to circumstances in which it is truly
warranted. When bad cops escape justice and trust between the police and the
community shatters, it isn’t just civilians who suffer the consequences, it’s the good
cops, too.

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