No one's writing songs called "Fuck the Fire Department."​

I am a supporter of building an equal and equitable judicial system. I recently joined a peaceful Black Lives Matter protest in San Diego. A band was playing. People held signs. People danced and talked about the importance of Black Lives Matter. And then I got tear-gassed and flash-banged by the police without warning. In an instant, police violence needlessly escalated a peaceful situation to a violent one. And my experience is clearly not limited to San Diego. People are justifiably furious with the police and their conduct. Check out this audio from a 6-hour public session of the citizens of Los Angeles raking their police chief over the coals:

And there will probably be no repercussions for their abysmal approach to dealing with peaceful protests. Just like there’s nearly no repercussions for anything else the police do wrong, like murdering George Floyd in the street by kneeling on his neck until he died. And even though the officer that killed George Floyd is currently charged with criminal conduct, George Floyd's family will likely have an incredibly difficult time recovering civil damages due to qualified immunity.

So how did we get to a point where obvious police misconduct escapes civil damages? The problem goes back decades. To keep things narrow and to avoid going over items that are constantly already in front of your face 24/7 I'm going to focus on one area of law that constitutes an abject failure and deserves to be shot into the vacuum of space: Qualified Immunity.

Qualified Impunity.

Qualified immunity is a misnomer. It should get retitled to qualified impunity because it's the doctrine that gives the police and other public officials a nearly unfettered right to torment people without consequence. One of the few avenues to recovery from the government in the event of an abuse of governmental power is Section 1983. This statute states that individuals can recover civil damages "except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity...". The first case law about this particular clause erupted out of Mississippi in 1967 during the Civil Rights era. A judge relying on dead law detained civil rights protestors until trial then convicted them. The Supreme Court held that a judge relying on dead law to punish civil rights protestors could be afforded a defense that they simply made a good-faith error in the false arrest and imprisonment of the civil rights protestors. Right away - you can see this particular line of case law is heading down a dark path.

The case that establishes what would count as a good-faith mistake involves the Nixon administration. An Air Force analyst testified to Congress about an aircraft project that had become a boondoggle for the United States. He was fired after this testimony by the Nixon administration. The Supreme Court held in part that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would not have known."And that's where we get the test that still gets used today to determine whether a government official was reasonably mistaken about whether or not they could do something.

So how does this doctrine unfold for people interacting with police and other public officials? In a study conducted by Reuters, over half of cases involving qualified immunity and police brutality the courts came down in favor of qualified immunity. The effect is that police who kill or maim and their departments escape having to make their victims whole.

Here's a small sampling from a hellscape of qualified immunity cases, and abuse isn't limited to only the police.

In Safford Unified School District v. Redding school officials strip-searched a 13-year-old girl because they thought she might have Advil. Even though the humiliating search violated her 4th Amendment rights the school officials received qualified immunity.

In Amy Corbitt v. Michael Vickers the police invaded a family's home because a suspect had wandered into the area. The police instructed a family with children to get down on the ground in their own yard and officer Vickers shot at and missed the family dog. When the dog tried to return Officer Vickers shot at the dog, missed again, and instead hit the 10-year-old child lying face down as instructed only 18 inches away from Officer Vickers. The officer shot a 10-year-old at point-blank range in front of his family in his own yard in a failed attempt by the police to execute his dog in front of him. Do the parents and child get damages from the police where they shoot an innocent 10-year-old for no reason? Nope. The officers get qualified immunity and that family gets to live with a lifetime of pain from that horrific moment and a kid grows up maimed by the police with no money for healthcare. Amy Corbitt petitioned for certiorari, meaning she asked the US Supreme Court to hear her case.

And in another case that petitioned for certiorari, the doctrine of qualified immunity is up for discussion again in West v. Winfield. A homeowner gave the police a key to her home and invited them to enter to retrieve her ex-boyfriend. The police took this consent to enter and proceeded to destroy the house from the outside by firing an incredible amount of tear-gas into the building. The ludicrous issue the Supreme Court could address now is whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point case law. The 9th Circuit reasoned the officers should receive qualified immunity because there's no other nearly identical set of facts in a qualified immunity case that matches up with this one. This basically grants the police qualified immunity if they become manifest destiny style pioneers of civil rights deprivation.

The qualified immunity test, in practice, feels a bit like a Dave Chappelle skit where government officials can get out of trouble by saying "I'm sorry, I didn't know I couldn't do that" only to speed off without consequence laughing and saying "it's funny because I did know I couldn't do that!" There's simply no consequences in most cases for public officials engaged in egregiously wrong conduct with citizens.

Removing qualified immunity is a potential avenue for improving police departments. If the police on your force are prone to violence then keeping them around will become expensive. There's a powerful economic incentive to use de-escalation first if at all possible. And victims who suffer from these kinds of horrific encounters will get a shot at some sort of recovery. Imagine if the police meandered into your backyard and shot your kid while trying to execute your family dog? Do you think it's fair your kid grows up maimed for life and the police don't need to help that situation at all? I tend to think not. Would you feel comfortable calling the police if you thought there was a chance that instead of helping they destroyed your entire house and wouldn't pay for what they did? Hell no. And this isn't a perspective that's held only by liberals or people who are marching in the streets currently. It's a perspective also held by the conservative Cato Institute.

The entire doctrine is unfair and nearly cut from whole cloth by the Supreme Court in the 1960s so a federal judge could avoid consequences for unconstitutionally punishing civil rights activists. It has fostered a police force with no meaningful check on their actions and no recourse for their victims. It has contributed to a situation where, when faced with vanishingly rare actual consequences to their actions from people exercising their right to protest, the police are shocked, angry, and issuing statements saying that the blood of their victims is just as much on their hands as it is on the protestors. That perspective is as indefensible as it is ludicrous.

So get rid of qualified immunity. Either through Congress or the Supreme Court. It's a broken experiment in American misery.