An absolute shield: Qualified immunity,police misconduct and black lives matter

Abstract

Before the global spotlight ascended upon nationwide efforts to codify into law that Black Lives Matter, specifically, police accountability against the use of excessive force against unarmed civilians, qualified immunity has silently flourished throughout America. Created to shield police officers and other government officials for the actions they engage on the job, this long-standing judicial doctrine continues to proliferate a culture of near-zero accountability when police officers engage in misconduct, which for communities of color, oftentimes results in deadly outcomes against unarmed civilians. This article will first revisit the development and legacy of qualified immunity, followed by analyzing its universal defense from police unions, then shifting to a data-rich illustration of disciplinary data highlighting the systemically designed outcomes of qualified immunity via the New York Police Department, before providing concluding thoughts. Ultimately, this article asserts that the retrogressive outcomes of police disciplinary inquiries, especially with respect to communities of color, is operating as designed, whereas efforts to review and revisit its structure and practices threaten a longstanding culture of disregard and near-zero accountability.

The phrase “license to kill” has oftentimes come into contact with conversations about the mind-numbing legal protections that shield American law enforcement officers from otherwise sensible forms of accountability. This, of course, has consistently led to the question, “who is policing the police?” All too often, the response to that question has come in the form of secretive “internal investigations,” where the process and sometimes even the police officers involved are withheld from the public. Variables such as requesting public input, providing detailed accounts of the internal investigation process or otherwise oftentimes are non-existent. Instead, as the story goes, the officers are placed on “desk-duty” pending the outcome of the query, and like many of these stories, said officers are back on the street, following a so-called thorough investigation conducted by their own law enforcement peers, local to their specific precinct, municipality or troop. Objectivity alone should be cause for concern, though when looking beyond this, in many cases, most police departments do not even have a publicly available and searchable database which would allow members of the public to see the number of complaints or investigations specific officers have had lodged against them (Cox and Freivogel, 2022). Shrouded in secrecy and suffering from splintered community support, especially among people of color, (Desilver et al., 2020), the cost of shielding majority white police officers from their violent and deadly actions is what this article interrogates. To begin, we will first engage a brief, yet detailed account of the racial origins of qualified immunity along with its diachronic legal development. With the context of our inquiry established, we will then shift gears to better understand why countless police organizations and unions are against efforts to revisit qualified immunity. From there, we review the police disciplinary data of the New York Police Department (NYPD), before concluding with final thoughts.

Operating as designed: the ongoing legacy of qualified immunity

In one of America’s most famous Supreme Court cases dating back to 1803, Marbury v. Madison established what we widely know today as judicial review. Put plainly, Chief Justice John Marshall, who authored the majority opinion, established that American courts have the ability and power to strike down statutes they believe violate the protections guaranteed under the United States Constitution. As Chief Justice Marshall opined, “the government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right” (Marbury, 1803). In other words, a government of laws is entirely meaningless if state officials can violate such legal rights with impunity, drawing a nearly identical resemblance to the debate over qualified immunity.

42 U.S. Code § 1983, more widely known as and to referred to as Section 1983, was passed as part of the Ku Klux Klan Act of 1871. Designed as a series of measures or “enforcement acts” seeking to stem the tide of lawlessness and civil rights violations in the post-war South, this is where we begin to see an application of Chief Justice Marshall’s aforementioned sentiments. This statute, in its entirety, states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia (42 U.S. Code § 1983).

In other words, Section 1983 is very clear in that any government actor who otherwise violates a person’s federally protected rights “shall be liable to the party injured,” allowing such parties to bring their case before federal court to obtain damages for their injuries. Additionally, the Supreme Court in its 1986 case, Malley v. Briggs, too acknowledged that Section 1983 “on its face, does not provide for any immunities” (Malley, 1986). Despite these diachronic developments that would otherwise lead the reasonable person to believe that no person, regardless of profession or employer, enjoys extra legal protections or is somehow “above the law,” qualified immunity continues to exist as a judicial lever frequently pulled by American law enforcement in cases ranging from excessive use of force to killing unarmed civilians.

In fact, throughout the Civil Rights Movement, uniformed police officers acted with near universal impunity in their violent treatment of peaceful civil rights activists. Displayed on live television, the use of fire hoses, police dogs, and outright floggings of individuals ranging from Dr Martin Luther King Jr, members of the clergy, non-violent activists widely known as Freedom Riders, along with countless scores of women, children and men, suffered great injury, including death, at the hands of law enforcement; all without an ounce of legal remedy or consequences for the countless officers involved. A cursory glance across the Civil Rights Movement reveals not only the commonality of such violent interactions at the hands, billy clubs, fire hoses and police canine units, but one after another, there were no consequences for the officers involved. Take for instance, the fifteen priests, both Black and white, who engaged the 1961 Prayer Pilgrimage to Jackson, Mississippi. When entering the “whites only” section of a bus terminal for lunch, all were jailed under the violation of breach of peace (Shadduck, 2021). To no surprise, all fifteen priests were sentenced to the maximum penalty under the law; four months in jail plus a $200 fine for each. While the charges were dismissed upon appeal, the priests then decided to sue the police under Section 1983, seeking legal recourse for their civil rights violations. While a jury immediately decided against the priests, they appealed to the 5th Circuit Court of Appeals. There, the court ordered a new trail, identifying errors in the previous proceedings. The police officers involved then appealed to the Supreme Court, which brought us the 1967 case, Pierson v. Ray. This historic case is where the Supreme Court first introduced its justification for qualified immunity for police. Chief Justice Earl Warren opined from the bench, that police officers should not be held accountable or otherwise liable “if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid” (Pierson, 1967). It is Warren’s application of “good faith” laid the groundwork for how qualified immunity is interpreted today, largely free from accountability.

Today, qualified immunity, as further outlined, for instance, in the 2009 Supreme Court case, Pearson v. Callahan fast-forwards ongoing interpretation of how the Supreme Court views and applies qualified immunity. Through the Court’s eyes, “qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably” (Pearson, 2009). To be clear, as the contours of legal interpretation can be confusing, qualified immunity does not provide impunity from paying money damages, which is oftentimes paid by the local municipality and not the officers, but from going through the costs of a trial. As applied, it is common to see monetary settlements, though as is oftentimes the case, the police officers involved, however, rarely face legal or otherwise punitive consequences. For example, in the 2014 high-profile cases involving the deaths of Michael Brown in Ferguson, Missouri, Eric Garner in New York City, and Tamir Rice in Cleveland, Ohio, while monetary settlements were made, absolutely no criminal charges were brought against the officers involved. In 2015, of the two high-profile cases that garnered national media attention, noting that many cases do not, Freddie Gray of Baltimore, Maryland and Walter Scott of North Charleston, South Carolina, only one officer faced criminal charges. In this instance, the officer who shot and killed Walter Scott was charged and convicted thanks in large part to eyewitness cellphone video of the encounter, which clearly illustrated that the officer involved not only falsified the police report but also staged the scene and altogether lied about the encounter (Schmidt and Apuzzo, 2015). If not for the eyewitness provided video, the Walter Scott case would have resulted in the manner that countless others do—without legal recourse.

The historical legacy of qualified immunity continues to leave an unnumerable number of bodies of color injured or killed at the hands of police, with little to no legal remedy (Schwartz, 2023). If, in fact, we are “a government of laws, and not men,” as Chief Justice John Marshall noted, then how do we grapple with the reality that the law, qualified immunity, does not furnish any “remedy for the violation of a vested legal right?” How then do we contend with a retrogressive reality that continues to leave our most injured groups seeking justice? Ending qualified immunity in many ways, strikes a blow to the longstanding vestiges of white supremacy by no longer providing an absolute shield to government actors, largely white, who continue to inflict harm without legal consequences. While such actions may appeal to or make sense to some, ending qualified immunity would be injurious, according to major law enforcement associations throughout the United States. To grasp a better understanding of this argument, we now turn our attention to the rhetorical and legal fight police officers and their respective unions have launched in defense of qualified immunity.

Standing behind the blue wall: the defense of qualified immunity

A glimpse into the debate over qualified immunity reveals findings that simply fail to address the issue at hand, police brutality. Instead, as we will illustrate, police organizations continued defense of qualified immunity is filled with many twists and turns, much of which fail to address the concern over its legal application in defense of rogue cops. In a memo, whose parts later became shared in 2021 with both the majority and minority leaders of the United States Senate, the International Association of Chiefs of Police (IACP) released their statement in defense of upholding qualified immunity. Early on, the IACP makes known that “any modifications to this legal standard “will have a devasting impact on the police’s ability to fulfill its public safety mission.” Citing no evidence to support such a sweeping claim, one could pause here for just a moment to question this baseless claim on its face. Fulfilling its public safety mission is precisely why we are gathered here today, to review how law enforcement officials are NOT upholding its mission equally across all racial and ethnic groups. We additionally assert that the police’s ability to fulfill its public safety mission is harmed by the presence and invoking of qualified immunity as it continues to provide an escape hatch for officers’ bad behaviors. In many ways, the devasting impact they note above has long existed, whereas the real threat here is police accountability.

Continuing, unfortunately, in a similar manner noted above, the IACP offers a very misleading definition of qualified immunity that leaves a lot to be desired. In their words, “further, qualified immunity does not prevent individuals from recovering damages from police officers who knowingly violate an individual’s constitutional rights.” In deciding where to begin our correction of this statement, we found it fitting to incorporate two major details that were otherwise omitted by the IACP. First, as stated in the previous subsection, qualified immunity allows for police officers to legally act with impunity so long as no prior judicial decision involved the unique facts of the case. As Judge Don Willet said best, “to some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how unreasonable—as long as they were the first to behave badly” (Zadeh, 2019). In other words, so long as the “unique facts” differ from prior cases, a standard that is arguably rife with judicial malleability, the officer absconds without punishment. Furthermore, IACP’s claim that “qualified immunity does not prevent individuals from recovering damages from police officers” is categorically misleading. As written, one could reasonably believe that police officers incur financial repercussions for their rogue actions, however, that is not accurate. In fact, municipalities, not the officers, pay for damages. Take the 2014 case involving the police involved slaying of unarmed Michael Brown of Ferguson, Missouri. It was in fact the city’s insurance company that paid the $1.5 million dollar settlement to the Brown family, not the officer involved, Darren Wilson. Fundamentally dodging police accountability in their statement, the IACP ends it memo warning against the loss of qualified immunity. As they see it, doing so “would have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation. Calls to limit, reduce, or eliminate qualified immunity do not represent a constructive path forward. In fact, these efforts would most certainly have a far-reaching, deleterious effect on the policing profession’s ability to serve and protect communities”. (International Association of Chiefs of Police, 2021) Oddly enough, the IACP makes no suggestive attempts at representing a constructive path forward, they simply rely on the meritless claims noted in the previous sentence, calling much into question while ultimately leaving a lot to be desired.

In their 2020 letter to the former Chair of the Senate Judiciary Committee, Republican Lindsey Graham of Alabama, the National Association of Police Organizations, Inc., voiced their strong opposition to ending qualified immunity. Their letter, as we will now lay bare, is rife with fundamentally misleading claims from the very beginning, including this assertion about the relationship between qualified immunity and the police orchestrated death of George Floyd. According to NAPO, “we, as rank-and-file officers, support improving policing practices to ensure what happened to George Floyd is never repeated. It is vital to note, however, that qualified immunity has little or no application to cases like that of Mr Floyd. The officers involved in the death of Mr Floyd were very quickly arrested and charged with murder. Qualified immunity, by way of contrast, applies only to civil suits, and even then, to a small subset of cases” (National Association of Police Organizations, Inc, 2020). First, as we know to be true, qualified immunity was not raised in the civil case filed by the Floyd family because the city of Minneapolis was named in the civil suit (along with the officers involved) whereas the City of Minneapolis agreed to a $27 million dollar settlement, avoiding a civil trial altogether. Second, it remains largely unclear and a fundamentally unfounded sweeping claim for NAPO to assert that “qualified immunity has little or no application to cases like that of Mr Floyd.” At the time of their letter (June 18, 2020), it would not be for another year until former Minneapolis police officer Derek Chauvin was found guilty on state murder and manslaughter charges and is sentenced to twenty-two and a half years in prison followed by filing a guilty plea to federal charges of depriving George Floyd of his civil rights, to which he was sentenced to an additional 252 months, more than twenty years.

Carrying on in this manner, NAPO continues offer claims it simply cannot support. One major assertion found in this letter pertains to the court’s application of qualified immunity in relationship to police officers. As written, NAPO claims:

The doctrine only applies, if at all, to cases where no reasonable governmental official would have known that they were violating a clearly established constitutional or statutory right. Courts have noted repeatedly that the doctrine does not shield the inept or willfully blind, but does protect governmental officials, not just law enforcement officers, from attempts to impose ‘after-the-fact’ liability for actions that no reasonable official could have known were unlawful at the time. Violations of known rights are punished; the doctrine does not affect those cases at all. (National Association of Police Organizations, Inc, 2020)

This claim, on its face and its core is completely inaccurate. In fact, qualified immunity has been used to “shield the inept or willfully blind” on countless occasions. Unlike NAPO, however, we will provide evidence to support this claim, as the datapoints are far too plentiful. Take for example the 2019 case, Corbitt v. Vickers. Here, a criminal suspect fled into the backyard of Amy Corbitt while being pursued by law enforcement. Upon entering the backyard, officers ordered everyone on the ground, to which they complied. Then enters the family dog, who posed no harm to the officers, by Deputy Vickers fired two shots at the dog, missed and instead hit Corbitt’s 10-year-old child, who was still on the ground as initially ordered. Corbitt sued though the Court granted Deputy Vickers qualified immunity because the deputy sheriff’s actions did not violate any clearly established rights at the time. Or, how about the 2020 case, Baxter v. Bracey? In this instance, Officers Bracey and Harris were pursuing Alexander Baxter, who reports detailed him as attempting to burglaries homes. Upon pursuit of Baxter, officers found him sitting on the ground with his hands in the air. Despite this, Officer Harris released the police dog who then bit Baxter, requiring emergency medical treatment. Nonetheless, Baxter’s attempt to sue Officer Harris was shieled by qualified immunity. According to the court, there was no case law suggesting that Baxter, “raising his hands, on its own, is enough to put Harris on notice that a canine apprehension was unlawful in these circumstances” (Baxter v. Bracey, 2020). In both cases, as one can see, NAPO fails to satisfy the burden of proof that “violations of known rights are punished; the doctrine does not affect those cases at all.” In the aforementioned examples, the outrageous behavior of police officers were ultimately shielded by qualified immunity, to which no punishment was adjudicated. In each case, the courts never argued that their actions did not violate known rights, but instead that there was no case law that specifically pertained to the unique facts of the case. In the example of Baxter v. Bracey, existing case law centered noted the unconstitutional nature of releasing a police canine on a non-threatening suspect laying on the ground with their hands at their side, but again, the officer was granted qualified immunity because the case law did not address a suspect raising their hands.

The contours of qualified immunity and the many small, yet very specific details surrounding its interpretation and application are what ultimately render such letters from law enforcement organizations incomplete in some areas while incorrect in others. Keeping the two previously noted court cases in mind, Republican Senator Tom Cotton of Arkansas, in 2021 op-ed, entitled “In Defense of Qualified Immunity,” offers his thoughts. Chief among his arguments is the claim that, “contrary to the misinformed and disingenuous arguments of critics, qualified immunity does not elevate police officers above the law, nor does it make it impossible to sue an officer for violating your rights,” later stating, “a rogue officer who brutally beats a suspect or manufactures evidence, for example, can be held personally liable and sued for his actions” (Cotton, 2021). Odd how this runs counter to not only Baxter v. Bracey and Corbitt v. Vickers, but for Michael Brown, Eric Garner, Tamir Rice, Stephon Clark, Sandra Bland, among so many other African Americans who have died at the hands of police with little to no legal recourse or remedy.

In 2016 in Cleveland, Ohio, Shase Howse, who was simply fumbling his keys on his own porch, caught the suspicion of plain-clothed local police, who were driving an unmarked vehicle. Asking if Howse actually lived there, he replied in the affirmative and police departed the scene. Doubling back, police noticed he was still there and decided to engage Howse, asking him to place his hands behind his back, as they were arresting him. Howse did not comply, noting again that he lived there and was committing no crime. While Howse noted he was unaware that the two plain clothes officers were indeed police, nothing otherwise says or proves that the officers identified themselves either. Here, Howse was charged with two counts of assault and one count of obstructing official business. While he sat in jail for seven days, the charges against him were soon dropped (Januta et al., 2020). Soon thereafter, Howse sued the police, arguing the officers had violated his Fourth Amendment rights with excessive force and malicious prosecution. Unfortunately, the U.S. Court of Appeals for the 6th Circuit rejected his suit on the grounds of qualified immunity. This, of course, despite the fact that there is nothing illegal about fumbling one’s keys, let alone on the porch of your own home. In Fort Worth, Texas, Clayton Dobbins drew the suspicion of local police by simply riding his bike in his own neighborhood, which was more than enough for police to engage him, shock him with a Taser and arrest him. Dobbins, like Howse, sued the police on the same grounds, leading to the 2017 case, Dobbins v. Martin. This example, very much like the last, ended in an identical matter, the court granted the Texas police officer qualified immunity. In each example, every victim was Black, every police officer was white, none committed an actual crime, and the offending officer(s) were able to use qualified immunity to duck legal consequences for their actions.

Worst yet, every defense of qualified immunity we have encountered, makes no mention of the realities on the ground for the injured parties. In an empirical legal study on police indemnification, it is revealed that:

Police officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct (Schwartz, 2014: p.1).

In this study, which collected data on indemnification practices in forty-four of the largest law enforcement agencies across the country, and in thirty-seven small and mid-sized agencies, the numbers paint a different picture from what police organizations and individuals like Tom Cotton claim. It is nearly non-existent, despite Cotton’s claim that “a rogue officer who brutally beats a suspect or manufactures evidence, for example, can be held personally liable and sued for his actions.” In fact, as highlighted by the Officer conduct payouts dashboard, which is fed data from the City Attorney’s Office, police misconduct has cost the city of Minneapolis, Minnesota dearly. From 2019 to 2022, Minneapolis, not the officers involved, have paid out $60,940, 424.68 as part of officer misconduct claims and lawsuits.

Does anyone care? Black lives, police impunity and the New York Police department

Black Lives Matter activists have long argued that African Americans, along with other people of color face the brunt of unchecked police power. For countless victims, they continue to find themselves on the losing end of legal recourse, as rogue police officers enjoy a near absolute shield of legal immunity that renders no justice to those who are violated by police. As the drumbeat continues, perhaps no other law enforcement organization has been discussed more than the New York Police Department (NYPD), America’s largest police force. Whether it was Amadou Diallo, who, despite being unarmed, was fired upon with 41 rounds and shot a total of 19 times by four NYPD plainclothes officers in 1999, or Eric Garner, who was choked to death (an illegal maneuver according to the NYPD) by the NYPD for selling loose cigarettes in 2014, the harm placed upon African Americans and other communities of color is endless. In fact, according to findings published in the Journal of Epidemiology & Community Health, “the rate of fatal police shootings of unarmed Black people in the US is more than 3 times as high as it is among White people,” further noting, “our findings suggest the influence of an insidious anti-Black and anti-Indigenous logic to police violence that warrants further exploration into the role of these factors in fatal police encounters” (Lett et al., 2020: p.397). In Diallo’s case, the only punishment handled down to the officers involved was desk-duty for an unspecified amount of time. As for Eric Garner’s case, the officer involved was fired and stripped of his pension benefits, though still able to seek law enforcement employment elsewhere. This, unfortunately, is only the tip of the iceberg.

One of the NYPD’s most notorious and widely criticized policy was “stop and frisk.” In plain language, “stop and frisk” allowed officers to stop, question, search, and detain civilians who, in the officer’s opinion, exhibit some form of suspicious behavior. As a surprise to some, the execution of this policy exposed an empirical reality: the overwhelming majority of these stops were targeted at African Americans, despite being found in the majority of cases, in compliance with the law. According to 2021 data gathered by the New York Civil Liberties Union, 8947 stops were recorded, of which 60% were Black, 27% were Latinx, and 8% were white. Oddly enough, 61% of those frisked were innocent, meaning that the NYPD found no evidence of wrongdoing. Even if we review 2011, the year in which the NYPD recorded the most stops in its history, resulting in 685, 724 people stopped, not only did a similar pattern follow (53% of those stopped were African American, 34% Latinx and 9% white), a whopping 88% of those stopped were innocent. Additionally, it is worth noting that while African Americans comprised of 53% of those stopped, they were only, according to 2010 census data, 25% of New York City’s population. On the other hand, while whites comprised of 9% of those stopped, they were 33% of New York City’s population.

It continues to take very little for police officers to aggressively pursue African Americans, even when no crime has been committed. In 2020-2021, the New York Civil Liberties Union (NYCLU) obtained and updated a comprehensive database of complaints lodged by the public to the New York City Civilian Complaint Review Board, the independent agency charged with investigating complaints against the NYPD. In its entirety, this database contains 180,700 unique misconduct complaints since 2000, involving 59,244 sperate incidents and 35,435 active or former NYPD officers. Additionally, the complaints captured in this database pertain to excessive force, abuse of authority, discourtesy and offensive language. In their 2021 watershed report, “Cop Out: Analyzing 20 Years of Records Proving NYPD Impunity,” the NYCLU lays bare the widespread existence of brutal, racialized policing practices coupled with an all-too-familiar story, police impunity. Of the many empirical findings found throughout their report, several are of great interest to this article. One of the most critical findings explains how the vast majority of misconduct complaints against the NYPD rarely result in further action. As the report illustrates:

Of the 180,700 complaints investigated by the CCRB since 2000, only two percent received some type of discipline from the NYPD, and less than one percent received serious discipline, like forfeiting vacation days, suspension, probation, or termination.

The NYPD overrode the CCRB’s recommendation by imposing a lesser grade of discipline or imposing no discipline in 74% of substantiated cases (meaning cases in which misconduct is found to be improper based on a preponderance of the evidence).

Only three percent of force complaints and complaints involving a firearm investigated by the CCRB were substantiated.

80% of substantiated complaints that received a disciplinary recommendation of “Charges and Specifications” from the CCRB – the most serious recommendation – did not result in serious discipline (forfeiting vacation days, suspension, probation, or termination) from the NYPD.

Black officers were 33% more likely to receive serious discipline than white officers (Barber and McCormack, 2021: p.4).

These alarming stats alone point to a series of serious problems involving a policing culture that underscores an anything-goes approach, as evidenced by the near-zero accountability around civilian misconduct complaints against the NYPD. It has challenging to accept that in 98% of civilian misconduct complaints against the NYPD, officers received no form of reprimand. Keep in the mind that this is the same police force that for the entirety of the stop and frisk years (2003–2021), delivered a racially imbalanced outcome that overwhelmingly targeted African Americans. One of great weaknesses of the New York City Civilian Complaint Review Board, as seen here, is that their recommendations for disciplinary actions can be overrode by the NYPD, which is what occurred in 74% of the substantiated cases. This data point alone should be more than enough to raise eyebrows, as the only independent agency whose mission is to review and recommend further actions based upon police misconduct complaints sees and says one thing, while the NYPD, with final authority, sees and says something completely different. At the end, as the saying goes, “the police investigated themselves and found nothing wrong.”

As one continues to read the findings from the database of police misconduct complaints submitted to the New York City Civilian Complaint Review Board, one begins to understand the furious fervor displayed by Black Lives Matter activists to end police impunity. Sadly, as the database reveals:

People of color – Black, Latinx, Asian, Other race, American Indian – are three times more likely to be identified as the injured party in a police misconduct complaint than white people. Black people are six times more likely to be identified as the injured party in a complaint than white people. While white people account for 32% of the New York City population, they represent only 13% of those identified as injured parties in CCRB complaints. 93% of those identified as the injured party in complaints where the person was younger than 18 were children of color (p.4).

As the story goes, this is simply a day in the life of minoritized people at the hands of a police force who sees, feels and believes that nothing is wrong or needs to change. Or, a police force that ultimately know that whatever they do, especially against African Americans and other communities of color, that the system as it currently operates, will shield them from liability or accountability. Oddly enough, given the high rate in which people are victimized compared to the infinitesimal amount of NYPD officers actually punished, let alone sued in court, represents nothing more than qualified immunity by a different name and process.

Taking matters further, the NYCLU also found that police obstruction is a clear and present threat toward conducting NYPD misconduct investigations. One major segment of the investigation process is for the New York City Civilian Complaint Review Board to gather and review evidence, which includes everything from collecting statements from the injured parties, obtaining body camera footage from the officer(s) involved to conducting interviews of all parties. In order to complete each investigation, all data must be collected, however, when this does not occur, the investigation timeline is either greatly extended or stalled altogether. Again, as the report highlights:

In 2020, police officers refused to take part in video interviews with CCRB investigators. This led to a backlog of more than a thousand investigations awaiting interviews. In part because of NYPD obstruction, once a complaint is filed, it takes months or even longer for CCRB investigators to complete an investigation. People who file complaints often give up on this tedious, drawn-out process before this happens. Many CCRB investigations end without finding that misconduct took place, not because there was no abuse, but because the NYPD successfully stymied an investigation. Other complaints are stymied because of how difficult it is to track down eyewitnesses and reconstruct events, especially if they happened months ago (p.10).

Discouraging, disappointing, and demeaning, are just three ways to describe the stonewalling illustrated here. The ability and protection afforded to officers who dodge misconduct investigations in a police force where only two percent of officers received some form of discipline, continues to beg the question, who is policing the police? A 2022 investigative piece published by the New York Times tracked NYPD misconduct complaints following the murder of George Floyd and found yet another disturbing pattern. In addition to citing a lack of cooperation by the NYPD with respect to providing requested information, “among roughly 40 cases related to the protests that the department has finished investigating, it waived discipline for 23 officers and chose not to follow the review board’s recommendations in seven other instances. The police and review board agreed on penalties for 10 officers” (Closson, 2022: p.1). While 30 of the 40 officers involved absconded without so much as being assigned to desk-duty, it is unclear as to the precise penalties levied against the remaining 10 officers. Left to its own devices, as we continue to see, the NYPD continues to operate in an unchecked manner where widespread abuses of power and force are largely and sadly accepted and protected as standard operating procedures. Afterall, the NYPD can override any and all disciplinary recommendations advanced by the only independent agency charged with investigating complaints against the NYPD, the New York City Civilian Complaint Review Board.

Conclusion

Left in its current form, qualified immunity not only remains a great threat to justice but also contributes to the crisis of confidence surrounding law enforcement. In no other profession can someone shoot and kill an unarmed person, and because no prior judicial decision involved the “unique facts” of the case, in the vast majority of instances, hide behind qualified immunity as a legal defense. While this, of course, is not to say that wrongdoings were not committed by the offending officer(s), the injured parties, nonetheless, are oftentimes left without recourse. Whether it be national headlines, empirical legal research, ongoing investigative reports, or otherwise, African Americans continue to pay the ultimate price.

The fight to dissolve qualified immunity is a fight to save Black lives. The fight to dissolve qualified immunity is a fight to level the playing field by ensuring no person or profession operates by a different set of rules at the expense of others. The fight to dissolve qualified immunity is a fight to provide legal recourse for those wronged by the actions of law enforcement. Our hope is that this research contributes to ongoing conversation to do just that.