Abstract

Excerpted From: Abigail Sloan, Shoot First, Think Later, Pay Never: How Qualified Immunity Perpetuates the Modern-day Lynching of Black Americans and Why Abolition Is the Answer, 37 Journal of Civil Rights & Economic Development 49 (Fall, 2024) (211 Footnotes) (Full Document)

Luke Stewart was twenty-three years old when he was killed for being a Black man asleep in his car. Luke was legally parked near a friend's house in the Cleveland suburbs when two men woke him by knocking on his window. One of the men opened the door to Luke's car and attempted to forcibly remove him by his head; the second man leaped into Luke's car and began attacking him. Out of fear, Luke attempted to drive away, but within about one minute, the second man punched Luke, stunned him with a taser six times, and then struck him in the head before shooting him five times, killing him. The two attackers were police officers who never identified themselves to Luke--who was unarmed and did not pose a threat to them.

As if Luke's killing is not tragic enough, when a civil rights lawsuit was filed in response to his death, it was dismissed because of the doctrine of qualified immunity. The Sixth Circuit Court of Appeals held that even though a jury could find that the officer's decision to shoot Luke had violated his constitutional rights, and that "the use of deadly force was unreasonable," the officer could not be held liable. Qualified immunity holds officers liable only in situations where they have violated someone's clearly established rights, and because a case with these exact facts has never been considered in court, the right for Luke to not be killed while asleep in his car had not been "clearly established." The police department did not discipline the officer for his actions, and he was completely shielded from civil liability. Luke's mother, who filed the lawsuit on his behalf, attempted to appeal the Sixth Circuit's decision to the Supreme Court, but the Court declined to take the case, meaning Luke and his family will never see justice.

Police officers' use of deadly and excessive force leads to the violent, public, and horrific killing of thousands of Black men, women, and children-- Luke's story is far from unique. The reality is that Luke became yet another victim of a violent and oppressive American regime that has failed to rectify hundreds of years of calculated attacks on Black lives--Luke was lynched. Today's perpetrators are not the same masses of self-appointed vigilantes, but rather they are police officers who hide behind their badges and the ever-powerful blanket of qualified immunity. Lynchings no longer resemble mobs hanging Black men and women from trees, but they continue to remain a violent act of terror against Black Americans.

In addition to the injustices these victims and their families face, the media further creates a skewed perspective of justice. High-profile cases, such as the killings of George Floyd and Eric Garner create national attention, causing panicked police departments to act outside of their regular course of business, but stories like Luke's are hidden from the media, in part because they are so common. In these high-profile cases, police departments are faced with immense political pressure and often offer large monetary settlements to victims and their families to avoid litigating the details of the case in the limelight with a qualified immunity defense. Police departments are also more likely to discipline individual officers who engage in headline-grabbing misconduct. However, these few instances are not the norm; officers are far less likely to be disciplined in low-profile cases. Instead, police departments regularly raise qualified immunity as a defense against claims--and the number of these low-profile killings are astronomical.

Since 2013, at least 11,100 people have been killed by police, but this number is conservative, as many killings go unreported. In 2022, more people were killed by police than any other year in the past decade. Black Americans are killed at a much higher rate than their white counterparts. Despite making up less than thirteen percent of the total U.S. population, Black Americans make up nearly thirty percent of police killing victims and are killed by police at nearly three times the rate of white Americans. Black men and boys have a 1 in 1,000 lifetime risk of being killed by police, while white men and boys see a 1 in 2,500 lifetime risk. Further, between the ages of twenty-five and twenty-nine years old, Black men are killed by police at a rate between 2.8 and 4.1 per 100,000, while white men are killed at a rate between 0.9 and 1.4 per 100,000. Such "[i]nequalities in risk persist throughout the life course;" although police violence is a leading cause of death for all young men, with 1.8 deaths per 100,000, police violence is especially deadly for Black men. These numbers are clearly significant, and has cause many physicians, activists, legal scholars, and others, to classify police brutality not just as a human and civil rights crisis, but also a public health one.

Black Americans across the country continue to die from the disproportionate effects of police brutality, and then are stripped of the right to find justice because wrongdoing police officers are shielded by qualified immunity. These killings are the modernday lynchings of Black Americans--which is why qualified immunity must be abolished. Analogizing today's killings to lynchings in the past is useful, primarily because it allows for a mechanism to analyze and understand state sanctioned violence against Black people and creates a framework for a solution. Although controversial, it is critical to confront the plague of racism and white supremacy that poisons the criminal legal system. The United States of America is a country that was created by the dehumanization and enslavement of Black lives, and our country's history must be confronted to bring forth social justice and equity. Much work must be done and becoming uncomfortable is a crucial element in creating change, because if we do not face the reality of our history, we are doomed to repeat the horrors of the past.

Qualified immunity is the court-created doctrine that allows police a license to kill--it allows public officials, such as police officers, to avoid liability for violating individuals' constitutional rights--so long as the specific right was not clearly established. Qualified immunity allows police officers to escape lawsuits that are both tragic and outrageous. In 2019, an officer who shot a ten-year-old lying face-down on the ground successfully claimed the qualified immunity defense. Another case of an egregiously unjust grant of qualified immunity was when two officers lit a man suffering from a mental health crisis on fire, killing him. In addition to the federal immunity afforded to officers, as of April 2023, every state recognizes qualified immunity as a defense available to police in all or most circumstances, except for Colorado, Montana, Nevada, and New Mexico, which have completely banned police officers from using qualified immunity as a defense in state court. Because qualified immunity has become an almighty defense when police kill, officers are afforded the ability to shoot first, think later, and pay never.

The purpose of this Note is to analogize today's police killings of Black Americans to lynchings, and to examine how qualified immunity is one of many mechanisms governments and police departments use to evade accountability. The word "lynching" itself evokes an emotional and disturbing image of horror from the reconstruction-era South, with images of terroristic, racist violence which can be uncomfortable and traumatizing to confront. However, in using the word ""lynching," I intentionally and respectfully draw upon the similarities between historical lynchings and the police killings of Black Americans today, particularly in tracking the evolution of brutal violence to sustain and uphold white supremacy. While the word "lynching" has been used by former president Donald Trump to describe his impeachment, by Supreme Court Justice Clarence Thomas to describe the sexual harassment allegations from Anita Hill, and by Bill Cosby and R. Kelly's publicists to describe the response to their sexual assault allegations, "only a lynching is a lynching." Trivializing such violent acts "reduces the humanity of those who truly suffered at the hands of lynch mobs." The intergenerational trauma felt by the Black community should not be minimized, and a word that invokes such a painful history should only be used with respect and understanding.

Modern-day police killings of Black Americans are analogous to historical lynchings and the qualified immunity doctrine perpetuates a culture of impunity, allowing police officers to get away with murder--therefore, the doctrine must be abolished. Part I of this Note discusses the qualified immunity doctrine, including the rationale for its creation, its evolution, the "clearly established" standard, and the heightened level of scrutiny that makes it too difficult for to sue police officers for misconduct. Part I also discusses the history of lynchings, focusing on the culture of violence against Black Americans, predominately in the South. The Note then traces the transformation of lynching from its historical origins to modern day.

Part II analyzes how abolishing the qualified immunity doctrine will hold police officers accountable as a solution to the impunity that runs rampant in police departments. It analogizes that the end of traditional lynching was brought about in part by antilynching activism which led to a greater degree of accountability for perpetrators, and therefore that holding police officers legally accountable will help bring justice to victims of police misconduct and violence. While historical lynchings decreased in large part by social change across the country, the lack of legal accountability allowed historical lynchings to persist for as long as they did, and therefore social activism was significant in bringing an end to historical lynchings. Further, because lynchings have not been eradicated, but rather have only changed form, legal accountability is necessary to bring an end to lynchings.

[. . .]

The use of the qualified immunity doctrine to circumvent accountability of police officers who, through their killings and misconduct, violate the due process rights of Black Americans, has had an insurmountable effect on the criminal legal system, and has perpetuated the modern-day lynching of Black Americans. Police brutality has become a public health crisis in America, where killings at the hands of police is a leading cause of death for young Black men. While this country has made much progress since the Civil War, it has failed to create a safe society for Black Americans, and it has failed to eradicate one of the most shameful stains on our country's history--that of lynching. Lynching--the killing of someone who has not received due process, carried out by a group of persons showing cruelty or a disregard for human life and using the public sphere while instilling fear and promoting white supremacy--has transformed from nooses in trees and bullets from mobs to survive in a society that continues to devalue the lives of Black Americans.

Although the United States touts its commitment to "liberty and justice for all," the Court decides otherwise, by shielding those who perpetuate injustice with the all-powerful blanket of qualified immunity--even when it acknowledges that officers violated the Constitutional rights of victims. By twisting the qualified immunity doctrine to apply in virtually all cases by way of the ""clearly established" standard, the impossible burden that the oppressed must reach systemically shuts them out, deciding that white supremacy must prevail. The only solution to bring about change is to hold wrongdoing police officers accountable through the nationwide abolition of the qualified immunity doctrine. As states and cities enact their own restrictions and bans on the doctrine, they move closer towards progress and justice, but they will not get there on their own. To begin to solve the humanitarian crisis perpetuated by the modern-day lynchings of Black Americans, the qualified immunity doctrine must be abolished.

J.D., St. John's University School of Law, 2023; Editor-in-Chief, Journal of Civil Rights and Economic Development, 2022-23.