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Last week, the Supreme Court ruled again in favor of law enforcement officers invoking qualified immunity in cases of excessive use of force. The decisions, based on a pair of 2016 cases from Oklahoma and California, were handed down without the court hearing oral arguments and without any sign of dissent from the justices.

The rulings are the latest event in a long-simmering battle for activists trying to abolish the troublesome judicial doctrine that allows flagrant human rights abuses at the hands of police and other government actors to go unchecked.

“Every part of qualified immunity is so frustrating,” said Alexa Gervasi, an attorney for the Project on Immunity and Accountability at the Institute for Justice. Gervasi and her colleague, Anya Bidwell, have been fighting for their clients’ rights to get their excessive force and police brutality cases heard in court.

Qualified immunity doesn’t simply shield officers once they’re in a courtroom; in many cases it prevents suits from even making it into the courtroom in the first place. A government agency or a police officer’s invocation of qualified immunity can block a civil suit from moving forward for years until a state or federal court settles whether a plaintiff had a clearly outlined right that was violated.

If the courts decide that a plaintiff didn’t have a clearly established right before a violation took place, then they essentially treat it as though the violation never happened. For example, last year in Texas, two teachers were allowed qualified immunity in cases that accused them of abusing students in their care. In one case, a first-grader claimed a teacher threw him onto the floor and put him in a chokehold. The Fifth Circuit Court of Appeals was unwilling to say that students had a clearly established Fourth Amendment right against excessive force at school, so the teacher’s action was upheld.

“All these doctrines have just one goal … to prevent a plaintiff with constitutional claims from opening the courthouse door,” Bidwell said.

Recently, some states have made news with new laws that claim to put an end to qualified immunity on the state level. Colorado and New Mexico have each added laws to their books in the past two years that were initially reported as abolishing qualified immunity for police officers, but both states still have it on the books. The reforms have limited the way the legal defense can be used by officers, but it still exists.

Qualified immunity’s persistence can be partially blamed on police unions, as they have been some of the most vocal opponents of reforming it, but the police are only one part of the equation. Judges, attorneys, “law and order” politicians, and the people who vote for them all share some degree of accountability for their role in a system that is built to brutalize marginalized people.

Legal activists are trying to fight back, but they’re aware of the long, uphill climb they have to make before anything meaningful happens.

“If we don’t get rid of [qualified immunity], certain ‘bad apples’ will continue to violate people’s rights with impunity,” said Christopher E. Brown, a civil rights attorney who specializes in excessive force cases. 

For Brown, the best way to start the conversation around the possibility of ending qualified immunity is to frame it as a discussion about accountability.

“Why do we treat officers with kid gloves in these situations?” he said.

Lisa Holder, a Los Angeles-based attorney and of counsel at the Equal Justice Society, views qualified immunity as something artificial that can be abolished in due time.

“Qualified immunity is not embedded in the Constitution,” Holder said. “It’s judge-made jurisprudence,” meaning that it can eventually be undone.

But how do activists like Holder, Bidwell, Gervasi, and others in their field cope when the odds seem eternally stacked against them?

For Holder, it’s about imagination.

“The narrative is the same narrative we use when we talk about reimagining public safety. It’s about coming up with a style of policing that is not just about controlling the movement of Black and brown people,” she said.

For Gervasi, the approach is multipronged.

“Some judges give me hope. We’re not fighting alone and that helps,” she said, referencing other advocates and activists fighting alongside them. And when all else fails, “I just go to bed at night knowing I’m right.”

Aria Velasquez

Aria Velasquez is a freelance journalist and audio producer currently based in New York. Velasquez is working towards her MA in journalism at the Craig Newmark Graduate School of Journalism at CUNY. She...