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.
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.”
