By John W. Whitehead & Nisha Whitehead
The Supreme Court has spoken: There will be no consequences for cops who brutalize the citizenry and no justice for the victims of police brutality.
Although the Court’s 2021-22 rulings on qualified immunity for police who engage in official misconduct were largely overshadowed by its politically-polarizing rulings on abortion, gun ownership ,and religion, they were no less devastating.
The doctrine of qualified immunity was intended to insulate government officials from frivolous lawsuits, but the real purpose of qualified immunity is to ensure that government officials are not held accountable for official misconduct.
In Egbert v. Boule, the Court gave total immunity to Border Patrol agents who beat up a bed-and-breakfast owner, in the process carving out a massive exception to the Fourth Amendment for border police (and by extension, other federal police) who unconstitutionally use excessive force. Journalist Ian Millhiser concludes, “Egbert v. Boule is a severe blow to the proposition that law enforcement must obey the Constitution.”
In Cope v. Cogdill, the Court let stand a Fifth Circuit ruling that granted qualified immunity to jail officials who watched a suicidal inmate strangle himself without intervening or calling for help. Likewise, in Ramirez v. Guadarrama, the Court let stand a lower court ruling granting qualified immunity to police officers who fired their tasers at a suicidal man who had doused himself in gasoline which caused the man to burst into flames.
Both Cope and Ramirez move the goal posts for the kind of misconduct that merits qualified immunity, suggesting that even sheer incompetence is excusable when it involves a cop.
It’s a chilling reminder that in the American police state, we the people are at the mercy of law enforcement officers who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to serve and protect.
It is how unarmed Americans keep dying at the hands of militarized police.
Under the guise of qualified immunity, there have been no consequences for police who destroyed a private home by bombarding it with tear gas grenades during a SWAT team raid gone awry, or for the cop who mistakenly shot a 10-year-old boy after aiming for and missing the non-threatening family dog, or for the arresting officer who sicced a police dog on a suspect who already had surrendered.
Qualified immunity is how the police state stays in power.
Although the U.S. Supreme Court recognized in Harlow v. Fitzgerald (1982) that suing government officials for monetary damages is “the only realistic avenue” of holding them accountable for abusing their offices and violating the Constitution, it ostensibly has given the police and other government agents a green light to shoot first and ask questions later, as well as to probe, poke, pinch, taser, search, seize, strip, and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts.
Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.
Make no mistake: It is what constitutes “law and order” in the American police state.
These are the hallmarks of a police state: where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies, rather than citizens.
Unfortunately, we’ve been traveling this dangerous road for a long time.
A review of critical court rulings over the past several decades, including rulings affirming qualified immunity protections for government agents by the U.S. Supreme Court, reveals a startling and steady trend towards pro-police state rulings by an institution concerned more with establishing order, protecting the ruling class, and insulating government agents from charges of wrongdoing, than with upholding the rights enshrined in the U.S. Constitution.
Indeed, as Reuters reports, qualified immunity “has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.” Worse, as Reuters concluded, “the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police.”
For instance, police can claim qualified immunity for warrantless searches.
Police can claim qualified immunity for using excessive force against protesters.
Police can claim qualified immunity for shooting a fleeing suspect in the back.
Police can claim qualified immunity for shooting a mentally impaired person.
Police officers can use lethal force in car chases without fear of lawsuits.
Police can stop, arrest, and search citizens without reasonable suspicion or probable cause.
Police officers can stop cars based on anonymous tips or for suspicious behavior such as having a reclined car seat or driving too carefully.
Americans have no protection against mandatory breathalyzer tests at a police checkpoint,
Police can forcibly take your DNA, whether or not you’ve been convicted of a crime.
Police can use the fear-for-my-life rationale as an excuse for shooting unarmed individuals.
Police have free reign to use drug-sniffing dogs as “search warrants on leashes.”
Not only are police largely protected by qualified immunity, but police dogs are off the hook for wrongdoing.
Police can subject Americans to strip searches, no matter the offense.
Police can break into homes without a warrant, even if it’s the wrong home.
Police can use knock-and-talk tactics as a means of sidestepping the Fourth Amendment.
Police can carry out no-knock raids if they believe announcing themselves would be dangerous.
Police can recklessly open fire on anyone that might be armed.
Police can destroy a home during a SWAT raid, even if the owner gives their consent to enter and search it.
Police can suffocate someone, deliberately or inadvertently, in the process of subduing them.
Clearly, I make clear in my book, “Battlefield America: The War on the American People” and in its fictional counterpart, “The Erik Blair Diaries,” the system is rigged.
Because the system is rigged, because the government is corrupt, and because the U.S. Supreme Court has consistently chosen to protect the police at the expense of the people, we are dealing with a nationwide epidemic of court-sanctioned police violence carried out with impunity against individuals posing little or no real threat.
This is how “we the people” keep losing.
—The Rutherford Institute