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The Supreme Court can protect Black lives by ending qualified immunity

Qualified immunity upholds a culture of impunity where police are not held accountable for using excessive force.
Minda Harts November 3rd, 2020
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We recently witnessed another crushing blow in the fight to end police violence against Black people. Only one of the three officers involved in the murder of Breonna Taylor was charged in the case. However, they were not charged for causing her death; rather, they were indicted on charges of destroying property. 

This is one of many recent denials of justice to families who have lost loved ones to police violence—these three officers aren’t the first to walk free after killing an unarmed Black person, and unfortunately, they won’t be the last. Additionally, the decision to only charge one Louisville police officer for the destruction of property sends the message once again that Black lives do not matter to law enforcement agencies.

That the police officers involved in the murder of Breonna Taylor were not charged or held accountable for her death is just one example of why the Supreme Court must move on ending qualified immunity—and why now is the time for a Black woman Supreme Court nominee. Only one legal entity can end the enactment of qualified immunity and remove the protection itself, and that is the United States Supreme Court. 

Qualified immunity is a legal protection created by the Supreme Court that shields government officials from being held liable for constitutional violations—such as the right to be free from excessive police force—as long as the officials didn’t violate “clearly established law.” It was invented by the Supreme Court in 1967 as a way to protect public officials who believed their actions were authorized by the law. Fifteen years later in Harlow v. Fitzgerald, the Supreme Court expanded the defense of qualified immunity. Instead of upholding the requirement of public officials acting in “good faith” in order to be shielded from liability, even officials who used excessive force would be immune from being held legally accountable for their actions. 

Justice Sonia Sotomayor called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” Sotomayor went on to say that qualified immunity “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Simply put, qualified immunity upholds a culture of impunity where government officials in general and police officers, in particular, are not held accountable for using excessive force and violence against unarmed individuals. Qualified immunity blocks mechanisms for holding the police accountable for their actions. Where there is no accountability, there is no justice. An outcome where only no one is changed for causing Breonna Taylor’s death is a failure of the law; a failure that could be solved by ending qualified immunity and widening the pathways for holding law enforcement accountable for the violent harm caused to our communities. 

While it is true that one Black woman won’t end qualified immunity and other laws that cause harm to the Black community, we still need and deserve a Supreme Court that is reflective of our diverse society. The failure of qualified immunity shows that we need better representation and that now more than ever, we need Supreme Court nominees who are committed to preserving justice. For the She Will Rise campaign, ensuring a Black woman Supreme Court nominee is one of our top priorities, but what’s even more important to us is making sure the nominee is a Black woman who understands the danger qualified immunity presents for our nation’s more vulnerable community. The Supreme Court has the power to end this protection and finally hold police accountable so that there are no more Breonna Taylors, Rekia Boyds, or George Floyds. 


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