Who Is Policing The Police? | What SCOTUS & Congress Can Do About Qualified Immunity
June 4, 2020
WHO POLICES THE POLICE|
“The protests and clashes unfolding across the country in response to the killing of GEORGE FLOYD have upheld a resonant message for courts to consider: Law enforcement accountability is missing in the justice system. The Supreme Court could decide soon whether it will take a closer look at a legal doctrine it created nearly 40 years ago that critics say is shielding law enforcement and government officials from accountability.” Jamie Ehrlich with CNN reports that the long-standing qualified immunity doctrine could have its day before SCOTUS at a time when police conduct has never been more relevant. She notes that in 2017 JUSTICE CLARENCE THOMAS urged SCOTUS to reconsider the doctrine, as did JUSTICE SONIA SOTOMAYOR that same year.
AS SHE'S BEEN SAYING|
In fact, JUSTICE SONIA SOTOMAYOR has been the Supreme Court’s leading voice in speaking out against police abuse of power. Marcia Coyle with The National Law Journal writes, “The nationwide protests following the death of GEORGE FLOYD in police custody have put new attention on the U.S. Supreme Court’s police and civil rights rulings, and criticisms by one justice in particular that those decisions too often shield law enforcement’s misconduct from accountability.”
CLEAR AS DAY|
“The killing of GEORGE FLOYD in the custody of Minneapolis police officers and the waves of police violence we have seen in recent days in response to protests around the country serve as a testament to the Supreme Court’s betrayal of our Constitution. The Supreme Court has enabled horrific police violence by ignoring our constitutional history. Ending police violence and the killing of black people was one of the critical purposes of the 14th Amendment.” That’s David H. Gans arguing in Slate that the police violence and killings of unarmed Black men and women is in large part due to the Supreme Court’s jurisprudence. “In some areas, constitutional history is murky or debatable. Not so here,” Gans writes.
A PLAYBOOK FOR FIXING POLICING|
Seth W. Stoughton, Geoffrey P. Alpert and Jeffrey J. Noble write in The Atlantic what’s actually needed to fix the problem of America’s law enforcement systems. They say it won’t be enough to reform certain bad agencies — what we need is much bigger, more systemic than that. But the problem isn’t figuring out what to do; it’s having the political will to actually do it. They put forward three big to do’s for Congress, starting with getting rid of qualified immunity. “As a judicially created doctrine, qualified immunity could be modified or eliminated by federal legislation. There is broad bipartisan support for doing so. The right-leaning commentator David French and the left-leaning UCLA law professor Joanna Schwartz have both made the case against qualified immunity. The American Civil Liberties Union, the NAACP Legal Defense Fund, the Cato Institute, and the Alliance Defending Freedom are among the groups that have filed amicus briefs or called publicly for the end of qualified immunity.”
ONE SMALL STEP FOR MAN|
Three Senate Democrats announced on Wednesday their plans to introduce a resolution calling for the end of qualified immunity. SENATORS MARKEY, BOOKER, and HARRIS plan to make the introduction and Markey tweeted yesterday, “Police officers are murdering black and brown Americans in our streets without any accountability. We must act NOW.” Zack Budryk with The Hill reports.
FROM STEAMING TO A SIMMER|
Jessica Gresko with The Associated Press covers how the pandemic has shifted the Supreme Court’s usual routine in June — what is typically its most action-packed month of the term. She writes, “The court’s most fought-over decisions in its most consequential cases often come in June, with dueling majority and dissenting opinions. But when a justice is truly steamed to be on a decision’s losing side, the strongest form of protest is reading a summary of the dissent aloud in court. Dissenting justices exercise what a pair of scholars call the ‘nuclear option’ just a handful of times a year, but when they do, they signal that behind the scenes, there’s frustration and even anger. The coronavirus pandemic has kept the justices from their courtroom since March and forced them to change their ways in many respects. Now, in their season of weighty decisions, instead of the drama that can accompany the announcement of a majority decision and its biting dissent, the court’s opinions are being posted online without an opportunity for the justices to be heard.”
SCOTUS VIEWSThe New York Times
“One of the few arguments against reforming qualified immunity is that it would open the door to a deluge of frivolous suits, which would chill officer behavior on the street and discourage people from becoming cops. But these concerns are almost certainly unfounded, argues Joanna C. Schwartz, a professor at the University of California, Los Angeles, School of Law and an expert in police accountability. Why? For one thing, qualified immunity is only one of many barriers to success in civil rights suits. What’s more, police officers are virtually always indemnified, meaning that even when they are found liable for damages, taxpayers cover 99.98 percent of the bill.”The Wall Street Journal
“In a concurrence to the denial of injunctive relief, the chief notes that the Constitution grants states broad police powers to protect public health, and state officials should not be subject to second-guessing by an ‘”unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.’ This is faux judicial modesty. Courts have long patrolled states that use police powers to intrude on core individual liberties.”The Hill
“The Supreme Court’s guidance on who leads in this public health response is good news and allows communities to get back to the business at hand. Rather than retreating to polarizing ideological positions, faith leaders at churches such as South Bay should engage in a dialogue based on goodwill with government leaders who are pledged to preserve life and health, a value that U.S. houses of worship surely share.”