Pictured: Police, in gear, with backs turned toward the camera
Photo by Harri Kuokkanen on Unsplash

By William Mabry IV

Police brutality and other violent police misconduct disproportionately affect communities of color, and in particular, Black communities.[1] An appalling example of police brutality occurred in 1991 when four police officers stopped Rodney King for driving under the influence, forced King to exit his car, tasered him, and then continuously beat him before handcuffing him while seventeen officers stood by and watched.[2] This case marked one of the first cases of videotaped police brutality, but even with the damning footage, state juries acquitted three officers andfailed to reach a verdict for the fourth officer.[3] Following the acquittal of the officers, riots broke out throughout Los Angeles, resulting in sixty-three deaths.[4]Eventually, a federal court entered a criminal ruling against two of the officers for willfully depriving King of the right to be secure in his person and free from the intentional use of unreasonable force.[5]

Rodney King survived his abysmal encounter with police, but police brutality often kills.[6] Death as a result of police intervention disproportionately affects Black men.[7] The last five years alone have brought about heartbreaking headlines of police brutality. Eric Garner, Michael Brown Jr., Eric Harris, and Freddie Gray are only a few of the names that weigh on society’s conscience.[8] According to the Washington Post, 998 people lost their lives due to police violence in 2018.[9]   

Police brutality was rampant even before1991, and it does not seem to be going away. Last year, the Supreme Court addressed the use of excessive force by an officer in Kisela v. Hughes.[10] In this case, police arrived to see a woman holding a knife at her side while standing on her porch; she was about six feet from a woman who was standing in the driveway.[11] Although Hughes appeared calm, and the knife was pointing away from the woman in the driveway, after Hughes failed to respond to two rapid police commands,officer Kisela shot Hughes four timesand handcuffed her before calling for an ambulance.[12] Hughes survived this encounter and sued for excessive force.[13] The Ninth Circuit found in favor ofHughes, but the Supreme Court reversed this decision and found that the officerwasentitled to qualified immunity.[14] In Kisela v. Hughes, a jury could have found the officer’s use of force  objectively unreasonable, but the Supreme Court failed to review the facts in the light most favorable to Hughes.[15] The Supreme Court reasoned, “Qualified immunity attaches when an official’s conduct does not violate clearlyestablished statutory or constitutional rights of which a reasonable person would have known.”[16]

The purpose of qualified immunity isto limit and eliminate frivolous cases brought against public officials who are justdoing their jobs.[17] The Supreme Court established the concept of qualified immunity when it interpreted good faith common law defenses applicable to judges and applied them to police officers and other public officials.[18] The doctrine of qualified immunity was misguided, primarily because the Supreme Court decided to disregard an officer’s subjective intent to avoid frivolous lawsuits.[19] Additionally, the Supreme Court went further and granted police immunity when they reasonably mistake the law; an obvious issue is that the primary role of the police is to know the law so that they may enforce it.[20] In cases of police brutality, the Supreme Court considers

whether the officer had fair notice that her conduct was unlawful[;]reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearlyestablish that the officer’s conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.

Brosseau v. Haugen543 U.S. 194, 197-98 (2004). 

Another instance in which a court applied qualified immunity to avoid holding police accountable for using deadly force is Mullenix v. Luna.[21] In that case,the dissent articulates why it is so confusing that qualified immunity would apply: “ChadrinMullenix fired six rounds in the dark at a car traveling 85 miles per hour. He did so without any training in that tactic, against the wait order of his superior officer, and less than a second before the car hit spike strips deployed to stop it.”[22] The doctrine of qualified immunity requires courts to consider the objective reasonableness of the actions of a specific officer at a specific time with specific facts, but the courts must do so without the help of “20/20 vision of hindsight.”[23] The doctrine places a reasonable officer on the scene, butby doing so,the doctrine allows foruntrained, trigger happy officers like in Mullenix to be viewed through the same lens as trained, qualified officers.[24]

A new standard is needed to incentivize peaceful resolution of matters, and that starts with creating a standard for qualified immunity that includes both subjective and objective elements.[25] The most viable course of action to correct the harm qualified immunity presents is to clarify the law and legislatively require that police use less than deadly force when confronting unarmed citizens.[26] Because qualified immunity is a doctrine based on common law, legislators must enact new policies before substantial changes to the doctrine could occur. Qualified immunity would be harder to obtain in cases of deadly force in which an officer was statutorily obligated first to attemptto resolve the situation with nondeadly force, and such statutes would put officers on notice of when deadly force is appropriate. We can build coalitions to review internal police handbooks and suggest and implement improvements. We must amend local, state, and federal policiesto clarify when an officer can use deadly force. For example, there is a newly proposed bill in the CaliforniaState Senate that would obligate officers to more peaceably resolve confrontations.[27] The bill has support from the American Civil Liberties Union and would be a significantvictory for those seeking to hold police officers to a standard of enforcement that preserves peace and lives. [28]

Qualified immunity denies victims of police brutality justice and holds the police to a lower standard of reasonableness than sustainable. Until our standards, laws, and surrounding jurisprudence change, it will remainchallengingto hold officers accountable for violent and lethal misconduct that is both unwarranted for resolving conflicts and targeted at our communities. By instituting legislation that describeswhen deadly force is reasonable, a narrowed application of qualified immunitywould no longer allow police to “shoot first and think later.”[29]

[1] See Police Violence Map, Mapping Police Violence, https://mappingpoliceviolence.org/ (last visited Feb. 13, 2019) (explaining that Black people are three times more likely to be killed by police than white people). 

[2] See United States v. Koon, 34 F.3d 1416, 1424-25 (9th Cir. 1994).

[3] Id. at 1425.

[4] CNN Library, Los Angeles Riots Fast Facts, CNN (Mar. 27, 2018, 1:03 PM), https://www.cnn.com/2013/09/18/us/los-angeles-riots-fast-facts/index.html; Los Angeles Riots: Remember the 63 People Who Died, L.A. Times (Apr. 26, 2012, 11:26 AM), https://latimesblogs.latimes.com/lanow/2012/04/los-angeles-riots-remember-the-63-people-who-died-.html

[5] United States v. Koon, 833 F. Supp. 769, 774 (C.D. Cal. 1993) (stating officers were convicted of violating 18 U.S.C.S. § 242 ); United States v. Koon, 833 F. Supp. 769, 774 (C.D. Cal. 1993). 

[6] Police Violence Mapsupra note 1 (listing thirteen cities in which Black men were killed at a rate higher than the state’s murder rate).

[7] See Nancy Krieger et al., Police Killings and Police Deaths Are Public Health Data and Can Be Counted, 12 PLOS Medicine 1, 7 (Dec. 2015).

[8] See British Broad. Corp., Freddie Gray’s Death in Police Custody – What we Know, BBC News (May 23, 2016), https://www.bbc.com/news/world-us-canada-32400497; Emily Brown, Timeline: Michael Brown Shooting in Ferguson, Mo., USA Today (Aug. 14, 2014), https://www.usatoday.com/story/news/nation/2014/08/14/michael-brown-ferguson-missouri-timeline/14051827/; Ana Campoy, Tulsa Deputy Charged with Manslaughter in Shooting, Wall St. Journal (Apr. 15, 2015), https://www.wsj.com/articles/police-video-shows-deadly-shooting-of-black-suspect-in-tulsa-1428913303; J. David Goodman, Eric Garner Died in a Police Chokehold. Why Has the Inquiry Taken So Long?, N.Y. Times (Nov. 8, 2018), https://www.nytimes.com/2018/11/07/nyregion/eric-garner-trial-nypd.html.

[9] Julie Tate, Jennifer Jenkins & Steven Rich, Fatal Force, Wash. Post, https://www.washingtonpost.com/graphics/2018/national/police-shootings-2018/ (last updated Jan. 25, 2019, 2:55 PM).

[10] Kisela v. Hughes, 138 S. Ct. 1148, 1150-52 (2018).

[11] Id. at 1152.

[12] Id. at 1155-56.

[13] Id.

[14] Id.; Hughes v. Kisela, 862 F.3d 775, 785 (9th Cir. 2017) (“While the woman with the knife may have been acting erratically, was approaching a third party, and did not immediately comply with orders to drop the knife, a rational jury—again accepting the facts in the light most favorable to Ms. Hughes—could find that she had  a constitutional right to walk down her driveway holding a knife without being shot.”).

[15] Kisela v. Hughes, 138 S. Ct. 1148, 1156 (2018) (Sotomayor, J., dissenting) (stressing that the officers were responding to a caretaker call, the knife was pointed away from the other person, and commands were given in quick succession before Kisela fired four shots).

[16] Kisela v. Hughes, 138 S. Ct at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).

[17] See Harlow v. Fitzgerald, 457 U.S. 800, 807-08 (1982) (affirming public officials are entitled a degree of immunity even when the Constitution is violated if a reasonable person would not have known the act was a violation).

[18] Evan Bernick, It’s Time To Limit Qualified Immunity, Geo. J.L. & Pub. Pol’y Blog (Sept. 18, 2018), https://www.law.georgetown.edu/public-policy-journal/blog/its-time-to-limit-qualified-immunity/ (discussing Pierson v. Ray, 386 U.S. 547, 553-57 (1967)). 

[19] Harlow v. Fitzgerald, 457 U.S. at 818-19 (holding that only objective reasonableness of an officer’s action were necessary to determine if qualified immunity was applicable).

[20] Brosseau v. Haugen543 U.S. 194, 197-98 (2004) (“Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.”).

[21] Mullenix v. Luna, 136 S. Ct. 305, 312 (2015).

[22] Id.at 313 (Sotomayor, J., dissenting).

[23] Graham v. Connor, 490 U. S. 386, 396 (1989).

[24] Luna v. Mullenix, 773 F.3d 712, 716-17 (5th Cir. 2014) (Mullenix shot in the direction of the car six times in the dark attempting to stop a moving car which resulted in hitting Luna four times and missing the car).

[25] But see Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (describing the current subjective element of qualified immunity as knowledge that the action would violate the Constitution).

[26] Brosseau v. Haugen543 U.S. at 201 (finding that the police officer shooting the fleeing suspect in the back was not a clear violation of the Fourth Amendment and thus qualified immunity applied).  

[27] Assemb. B. 392, 2019 Leg., Reg. Sess. (Cal. 2019).  

[28] Lizzie Buchen, New Bill Limits When California Police Can Use Deadly Force, Am. Civil Liberties Union: Speak Freely (Feb. 8, 2019, 1:15 PM), https://www.aclu.org/blog/criminal-law-reform/reforming-police-practices/new-bill-limits-when-california-police-can-use.

[29] Kisela v. Hughes, 138 S. Ct. at 1162 (Sotomayor, J., dissenting).

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