The current uprising against police violence has forced us to revisit the issue of police power and police impunity, but we hear very little about a judicial doctrine that grants the police impunity--a doctrine opposed on both the left and the right.


That doctrine is called "qualified immunity." It's been criticized by Supreme Court Justices, in particular two Justices who are on nearly opposite sides of the American ideological spectrum – Justices Thomas and Sotomayor. Qualified immunity has been denounced by gun rights activists as well as civil rights activists. So what is it?


Basically, it says that police can shoot first and ask questions later, or just generally act like vicious bullies, and that they are "immune" from accountability to either victims or to the public who pays their salaries. But qualified immunity is not law; it's judicial policymaking.


In 1877, the U.S. passed a Civil Rights Act sometimes called the Ku Klux Klan Act. This law permits citizens to sue law enforcement and other government organs for violations of Constitutionally protected rights. After Jim Crow fell, however, in the 1960s, the courts began reinterpreting the law, starting in 1976, with the invention of "qualified immunity."


The court held that police officers were not liable, even if they violated Constitutional rights, so long as they acted "in good faith" while "believing they were engaged in lawful actions." This incredibly elastic interpretation effectively opened the door to police abuse, whereupon police officers themselves quickly learned "the courtroom script" for wiggling out of accountability.


In 1982, the judiciary vastly expanded police impunity in Harlow v. Fitzgerald, in which the court, which had extended presidential "qualified immunity" to presidential aides, further extended this judicial doctrine (never a law) to "government actors," which included the police.


Since Harlow, the court has consistently upheld and even widened this judicially-guaranteed impunity, especially for police. While there have been a few cases where the obvious and egregious nature of a violation has forced the courts to side with plaintiffs, in the overwhelming number of cases, this has resulted in police misconduct, including lethal violence, being shielded from accountability by the courts themselves.


In addition to the elastic clause of "good faith belief," the courts have held that no grievance would be heard if it doesn't match exactly the grievance and the context of the grievance in some earlier court finding. By this, I mean the facts of the case can deviate not one jot nor tiddle from an earlier decision for a plaintiff.


Qualified immunity is the most common reason for the dismissal of harassment or brutality complaints. It doesn't only mean you will lose in court, it means your complaint will likely never see the inside of a courtroom. Because the likelihood of a plaintiff winning is so low, potential plaintiffs have a hard time even finding a lawyer who will take on a complaint if the client has insufficient funds for her or his own case. This is further complicated by the fact that members of the public cannot even see police disciplinary records, even though we are paying their bills.


If there's not a remedy soon, either from the judiciary or the legislature, it's a pretty sure thing this is not the last uprising we will see, as militarized police are increasingly used as proto-fascist storm troopers responding to the three-headed hydra of this historical period -- climate destabilization, economic collapse and pandemic.


Police impunity continues to fuel the confusion, fear, anger and disappointment of citizens, who are facing down cops, cops who -- like secret police -- conceal their identities with official approval. Qualified immunity is literally a license to kill.


Stan Goff is a resident of Adrian and author of several books.