For every profession, there are standards of conduct — and consequences when they are broken. Doctors can be sued for malpractice, lawyers for negligence. Police should be no exception. For too long, qualified immunity has protected the very people charged with upholding and enforcing the law from any consequence for breaking it. Even in the most egregious cases of police brutality, this Supreme Court-invented doctrine has allowed officers to use their badge as a shield from accountability.
The history of civil rights abuses and the establishment of qualified immunity in the United States are inextricably linked. The right to sue state and local officials — including police officers — for civil rights violations was initially established in 1871 to protect Black people experiencing backlash to the rights recently granted under the 14th Amendment. In fact, the tether between the need for accountability when a government official claims a person’s life and white supremacy was so strong that the bill establishing this right, the Civil Rights Act of 1871, was commonly referred to as the “Ku Klux Klan Act.” The law aimed to curtail the rampant white supremacist violence against Black people for simply existing and exercising their rights in the Reconstruction South.
However, in the years that followed, court case after court case strengthened qualified immunity and chipped away at these legally protected civil rights. After inventing the doctrine of qualified immunity in 1967, the Supreme Court issued several decisions expanding this protection. Since 2005, courts have increasingly ruled in favor of police in excessive use of force cases, a trend that has only accelerated in recent years.
Some examples of recent denials of justice include a case of mistaken identity in Dallas, where a cyclist was shot 17 times by five officers and a man shot dead while attempting to reverse his car.
Time and time again, the court found that although the police used excessive and unconstitutional force, they were still entitled to immunity from liability.
Massachusetts is no different. In 2015, Wilfredo Justiniano’s family filed a suit against state trooper Stephen Walker for excessive force and wrongful death. Walker had been called by a concerned driver wanting to report a man “who seemed to be distraught.” Upon the officer’s arrival, Justiniano, who had a history of mental illness, was “yelling and jumping up and down” and approached the officer with a ballpoint pen. The officer proceeded to pepper spray Justiniano twice before shooting and ultimately killing him.
The judge dismissed the case, citing qualified immunity.
Qualified immunity has repeatedly denied accountability for those abused at the hands of the law or recourse for the countless families robbed of their loved ones — ending the doctrine is an essential step toward ensuring justice.
When police are twice as likely to use force against people of color than white residents, and young Black men are nearly three times as likely to be killed by police, we know that this is a matter of racial justice — past and present.
In response to the inexcusable and willful acts of police misconduct, policy makers at all levels of government are exploring ways to finally bring an end to qualified immunity. At the federal level, Representatives Ayanna Pressley of Massachusetts and Justin Amash of Michigan have introduced the Ending Qualified Immunity Act, which would ensure that police officers engaging in police brutality are not shielded from accountability. At the state level, Colorado became the first in the nation to eliminate this doctrine.
Now, the Commonwealth has an opportunity to stand on the right side of history by ensuring that those enforcing the law are subject to it, too.
There can be no justice without healing and accountability, and there can be no true accountability with qualified immunity.
The need to eliminate qualified immunity is clear and, in this moment of national reckoning, lawmakers should show the political courage to finally get it done.
Congresswoman Ayanna Pressley represents the Seventh District of Massachusetts. Ricardo Arroyo is a Boston city councilor.