What is the proper role of police in our society? Most people believe that we employ police officers to help the criminal justice system hold people accountable when they break the law.
But it feels like every day, we wake up and read a new headline about police officers who escape accountability for lawless behavior. Even in cases that cost taxpayers million of dollars in meritorious lawsuits against the cities and towns that employ those same officers.
Why? There are many reasons. An 'us versus them' mentality within too many police departments, militarization of civilian police forces, prosecutors and government officials who look the other way, and of course, racism.
But one of the biggest reasons is that our society has intentionally created systems to make sure that police officers, unlike everyone else, are not held accountable when they break the law.
One of those systems that shield police officers from accountability is the doctrine of qualified immunity.
A recent opinion by a United States District Court Judge in Mississippi does a wonderful job of tracing the history of this judge-made doctrine. It tells the full story of how this doctrine, which has no source in anything enacted by a democratically-elected legislature, has metastasized over time.
The USDC Judge explains the doctrine as follows: A person cannot sue a police officer, unless the officer's conduct was unlawful based on "clearly established law."
In other words, “for the law to be clearly established, it must have been ‘beyond debate’ that [the officer] broke the law.”An officer cannot be held liable unless every reasonable officer would understand that what he is doing violates the law. It does not matter, as the Fifth Circuit has explained, “that we are morally outraged, or the fact that our collective conscience is shocked by the alleged conduct . . . [because it] does not mean necessarily that the officials should have realized that [the conduct] violated a constitutional right.” Even evidence that the officer acted in bad faith is now considered irrelevant.
As the Judge explains, hardly anything in the law can be said to be "beyond debate." Any lawyer will tell you that! So the "beyond debate" standard effectively stands as an iron-clad shield protecting police officers from being held accountable for breaking the law.
Here are the breathtaking opening lines of the opinion:
Clarence Jamison wasn’t jaywalking.
He wasn’t outside playing with a toy gun.
He didn’t look like a “suspicious person.”
He wasn’t suspected of “selling loose, untaxed cigarettes.”
He wasn’t suspected of passing a counterfeit $20 bill.
He didn’t look like anyone suspected of a crime.
He wasn’t mentally ill and in need of help.
He wasn’t assisting an autistic patient who had wandered away from a group home.
He wasn’t walking home from an after-school job.
He wasn’t walking back from a restaurant.
He wasn’t hanging out on a college campus.
He wasn’t standing outside of his apartment.
He wasn’t inside his apartment eating ice cream.
He wasn’t sleeping in his bed.
He wasn’t sleeping in his car.
He didn’t make an “improper lane change.”
He didn’t have a broken tail light.
He wasn’t driving over the speed limit.
He wasn’t driving under the speed limit.
No, Clarence Jamison was a Black man driving a Mercedes convertible.
As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badger-ing him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.
Nothing was found. Jamison isn’t a drug courier. He’s a welder.
Again, these are not the words of a #BLM activist. This is the opening of a judicial opinion by a US District Court Judge.
As you may have guessed, the judicial opinion drops footnotes that identify the notorious cases, many of which are well known to most of us, of the man inside his apartment eating ice cream, the man who made an improper lane change, the man assisting an autistic patient who wandered away from a group home, etc. -- all of whom were abused, or beaten, or even killed by the police.
You can read that opinion here:
-- Ted Lothstein
© 2020 Lothstein Guerriero, PLLC