Supreme Court’s role in immunity for the police – the importance of voting for democracy, not partisanship

How Supreme Court puts its thumb on the scale to seemingly savor the police

Qualified immunity is a legal protection granted by Supreme Court to shield government employees from frivolous lawsuits. In the case of the police which can exercise lethal forces upon citizens, the implications of qualified immunity can be profound. While it’s legitimate to offer police officers latitude in doing their job, qualified immunity can also be overused as a protection from misdemeanors. In this article, Reuters looked into how Supreme Court sided with the police in case involving use of excessive force. I highly recommend that you read the article. Some highlights that I think are important are as follows

In a dissent to a 2018 ruling, Sotomayor, joined by fellow liberal Justice Ruth Bader Ginsburg, wrote that the majority’s decision favoring the cops tells police that “they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

In that case, Kisela v. Hughes, the justices threw out a lower court’s ruling that denied immunity to a Tucson, Arizona, cop who shot a mentally ill woman four times as she walked down her driveway while holding a large kitchen knife.

A year earlier, Sotomayor in another dissent called out her fellow justices for a “disturbing trend” of favoring police. “We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity,” Sotomayor wrote, citing several recent rulings. “But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity.”

Source: Reuters

The main challenge for plaintiffs in excessive force cases is to show that police behavior violated a “clearly established” precedent. The Supreme Court has continually reinforced a narrow definition of “clearly established,” requiring lower courts to accept as precedent only cases that have detailed circumstances very similar to the case they are weighing.

In February, the federal appeals court in Cincinnati, Ohio, granted immunity to an officer who shot and wounded a 14-year-old boy in the shoulder after the boy dropped a BB gun and raised his hands. The court rejected as a precedent a 2011 case in which an officer shot and killed a man as he began lowering a shotgun. The difference between the incidents was too great, the court determined, because the boy had first drawn the BB gun from his waistband before dropping it.

In other recent cases, courts have sided with police because of the difference between subduing a woman for walking away from an officer, and subduing a woman for refusing to end a phone call; between shooting at a dog and instead hitting a child, and shooting at a truck and hitting a passenger; and between unleashing a police dog to bite a motionless suspect in a bushy ravine, and unleashing a police dog to bite a compliant suspect in a canal in the woods.

The Supreme Court in 2009 raised the bar even higher for plaintiffs to overcome qualified immunity. In Pearson v. Callahan, it gave judges the option to simply ignore the question of whether a cop used excessive force and instead focus solely on whether the conduct was clearly established as unlawful.

By allowing judges to consider only the question of clearly established law in excessive force cases, the Supreme Court created a closed loop in which “the case law gets frozen,” said lawyer Matt Farmer, who represented Lewis’s family.

Source: Reuters

I am not sure I know of situations where the odds are stacked against citizens more. Citizens, in general, do not possess weapons or resources to self-defend against authority which, ironically, is supposed to protect citizens in the first place. In cases where abuse of power is apparent, the laws, as you already see, are not on citizens’ side, either. It’s obviously a disturbing phenomenon to witness. One must wonder whether this qualified immunity and the Supreme Court’s tendency to rule in favor of the police contributes to the abuse of power and excessive use of force.

Vote. Vote. Vote. On every level.

Former President Obama penned a thoughtful blog post detailing his opinion on how the country can move forward from the current crisis. You can read it here

Second, I’ve heard some suggest that the recurrent problem of racial bias in our criminal justice system proves that only protests and direct action can bring about change, and that voting and participation in electoral politics is a waste of time. I couldn’t disagree more. The point of protest is to raise public awareness, to put a spotlight on injustice, and to make the powers that be uncomfortable; in fact, throughout American history, it’s often only been in response to protests and civil disobedience that the political system has even paid attention to marginalized communities. But eventually, aspirations have to be translated into specific laws and institutional practices— and in a democracy, that only happens when we elect government officials who are responsive to our demands.

Source: Barack Obama

Unfortunately, voter turnout in these local races is usually pitifully low, especially among young people — which makes no sense given the direct impact these offices have on social justice issues, not to mention the fact that who wins and who loses those seats is often determined by just a few thousand, or even a few hundred, votes.

So the bottom line is this: if we want to bring about real change, then the choice isn’t between protest and politics. We have to do both. We have to mobilize to raise awareness, and we have to organize and cast our ballots to make sure that we elect candidates who will act on reform.

Finally, the more specific we can make demands for criminal justice and police reform, the harder it will be for elected officials to just offer lip service to the cause and then fall back into business as usual once protests have gone away. 

Source: Barack Obama

The former President said it better than I think I can. So, vote whenever you can because our life depends on your votes a lot. It’s the most powerful weapon you can have in a democracy. What I really hate is that some folks relinquish their voting duty because their “guy or gal” isn’t a candidate or there is only one or two issues that they disagree with their candidate.

Vote for democracy, not partisanship

A study published on Cambridge Press examined whether Americans were willing to trade democracy for partisanship in voting.

…in states and districts where one party enjoys a significant electoral advantage, politicians from the majority party may be effectively insulated from an electoral punishment for violating democratic principles. To get a sense of the real-world relevance of this implication, consider that in 2016 only 5.1% of US House districts were won by a margin of less than 6.9%—the smallest margin that Table 4 implies is necessary for violations of democratic principles to be electorally self-defeating. That share of districts was still only 15.2% in 2018. Put bluntly, our estimates suggest that in the vast majority of U.S. House districts, a majority-party candidate could openly violate one of the democratic principles we examined and nonetheless get away with it.

Source: Cambridge Press

Our analysis of a candidate-choice experiment as well as a natural experiment consistently found that only a small fraction of Americans prioritize democratic principles in their electoral choices when doing so goes against their partisan identification or favorite policies. We proposed that this is the consequence of two mechanisms: (i) voters are willing to trade off democratic principles for partisan ends and (ii) voters employ a partisan “double standard” when punishing candidates who violate democratic principles. These tendencies were exacerbated by several types of polarization, including intense partisanship, extreme policy preferences, and divergence in candidate platforms. Put simply, polarization undermines the public’s ability to serve as a democratic check.

We conclude by discussing the implications of these findings for our understanding of democratic stability in the United States and the rest of the world. We saw that roughly 10–13% of our respondents—depending on the type of contests considered—value democracy enough to punish otherwise favored candidates for violating democratic principles by voting against them

Source: Cambridge Press

What does that mean? In my opinion, if voters were more willing to cross the partisanship line and vote for a person of a different party, it means that the partisanship and the divide within the country would be less severe. Lawmakers would be forced to be more accountable and to offer bipartisan legislations. The world is too diverse and lively for any of us to stubbornly stick to a rigid ideology. If one party is too egregious and the other party’s candidate shares more values with you, you should vote on shared human values, not partisan ideologies or “stick it to somebody else”.