SHEREEN MARISOL MERAJI, HOST:
I'm Shereen Marisol Meraji.
GENE DEMBY, HOST:
I'm Gene Demby. And this is CODE SWITCH.
MERAJI: From NPR.
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MERAJI: In the wake of the police killings of Breonna Taylor and George Floyd, people are re-asking hard questions about what exactly we should do with the police. Should we abolish the police, defund them, take them out of schools, get rid of the bad apples?
DEMBY: Because police departments have proven again and again and again resistant to even, like, the most modest reforms. Even the bad apples defense that you just mentioned, it skirts past the fact that those bad apples rarely face any consequences. Police officers seldom lose their jobs for brutality and misconduct.
MERAJI: They're rarely arrested or indicted, let alone convicted, for wrongdoing in criminal cases.
DEMBY: When it comes to the police, people almost certainly cannot get justice in a criminal case with criminal charges. But what if you decided, OK, OK, I'm going to try to get redress by suing them in a civil case? Well, it turns out that is virtually impossible because of this once-obscure notion called qualified immunity.
MERAJI: Qualified immunity.
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JOSIE DUFFY RICE: So let's say you are driving down the street. You get pulled over.
DEMBY: Josie Duffy Rice is a lawyer and the co-host of the "Justice In America" podcast at The Appeal, a journalism organization that focuses on the criminal justice system.
DUFFY RICE: A cop tells you to get out of your car. He beats you within an inch of your life, and later you want to sue him for the harm that you endured, for any medical bills or, you know, for any sort of resulting financial consequences that came out of your experience. You know, if it was a random person - right? - aside from there being possible criminal consequences, you could sue them in civil court and they could find that that person owes you money.
MERAJI: But this is not how it works when it comes to the police.
DEMBY: Josie said it doesn't really matter how outrageous the police behavior is. It doesn't matter if everyone looking at the details of the case agrees that the behavior is really bad.
DUFFY RICE: There are just example after example of just incompetence combined with just recklessness combined with maliciousness - right? - where the courts just say, like, this is actually OK. I mean, it's not OK morally, but it's OK legally.
MERAJI: One of the examples that Josie points to happened in Colorado in 2015.
DUFFY RICE: A man who was suspected of shoplifting armed was being chased by police, and he barricades himself in a stranger's home. And, basically, the cops are trying to force him out, and they blow up the walls of a stranger's house with explosives.
DEMBY: And then the police drove an armored vehicle into this man's house.
DUFFY RICE: They fired tear gas into the house. They basically just, like, destroy this person's home. And he's a stranger. He doesn't know the suspect. He's not accused of any wrongdoing. Anyway, when he tries to sue these officers, the court finds that there's no clearly established standard that says that the officer shouldn't have blown up his house, and so they find that he's not owed any compensation, that he can't actually sue them in court.
DEMBY: And as bad as that story is, like Josie says, it's not the only egregious example in this genre.
DUFFY RICE: There's one story about a kid who was told by cops to lay on the floor. Cop shoots him - just shoots a 10-year-old kid. They were actually trying to shoot the dog, which, to me, makes it even worse that, like, not only did you shoot my kid, you shot my kid by accident because you were trying to shoot my dog, which, also, why did you need to shoot my dog?
MERAJI: And in case you're wondering - I know I was - the child who was shot did survive. But according to the brief filed in this case, the 10-year-old who was shot wasn't the only kid at the scene. There were others - two were toddlers - and they were all asked to get on the ground at police gunpoint.
DUFFY RICE: The court said, OK, that's outrageous behavior, but it doesn't violate qualified immunity.
MERAJI: Qualified immunity. You might've recently seen a lot of protest signs that read, end qualified immunity, right alongside Black Lives Matter and abolish the police. A lot of people who want to rein in police misbehavior say this is the first step. Get rid of qualified immunity because, as we just heard, it places an extremely high bar on civil suits against police officers.
DUFFY RICE: What it says is basically that people who are public officials can really only be held accountable in civil court if they violate rights that are, quote, "clearly established." And by that, they mean is there case law? Have there been other examples that have been brought to court that are similar enough in context where someone has been held accountable? And the answer is almost always no.
DEMBY: So you heard Josie mention this clearly established standard, right? So let's just use the case of Breonna Taylor, for example. Breonna Taylor was shot and killed in her bedroom at night after the Louisville police carried out a no-knock raid on her house. In order for Breonna Taylor's family to successfully sue the police, her family would have to point to another previous lawsuit that was allowed to go forward with the same set of facts - you know, the so-called clearly established standard.
MERAJI: And when the courts say the same set of facts, that's what they mean - the same set of facts.
DUFFY RICE: It's very narrowly drawn. So it's not like, oh, there was a no-knock warrant, something went wrong, and there was a no-knock warrant here and something went wrong, right? Maybe it'd have to be a no-knock warrant at an unidentified house in the middle of the night, and the person would have to be sleeping. Like, was it a Sunday? Was it a Monday? Were there two of them? Were there three of them? Was my kid in the room? You know, did they knock once or twice? Like, you could really draw any situation to not be similar to something else if you want to.
MERAJI: And that creates this bizarro cycle. Qualified immunity effectively prevents cops from being successfully sued or, even as a practical matter, getting a suit filed in the first place because lawyers know how hard these cases are to win. So there's rarely precedent to use in a civil case when the police violate someone's civil rights.
DEMBY: And if you're listening to this and you're wondering how TF did we get to this point...
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DEMBY: Well, to understand that, we need to go back - like, way back - to the passage of something called the Ku Klux Klan Act of 1871.
DUFFY RICE: Don't you love that we have stuff like that?
DEMBY: And that's what we're going to do after the break.
MERAJI: Don't go anywhere.
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MERAJI: Shereen.
DEMBY: Gene.
MERAJI: CODE SWITCH.
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MERAJI: So before the break, we were talking about how we ended up with qualified immunity, which makes it pretty impossible to hold individual police officers liable for wrongdoing.
DEMBY: Right. And Josie Duffy Rice, who we just heard from, told me that one of the important things we have to hold in our heads is that how our laws are written is very different from what those laws actually look like once they're interpreted by the courts.
MERAJI: The roots of qualified immunity go back to the late 1800s, Reconstruction, a time when white Americans were trying to reassert their power over recently freed Black people, oftentimes violently.
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DUFFY RICE: So back many years ago, the Civil Rights Act of 1871, which is also known as the Ku Klux Klan Act...
DEMBY: The Ku Klux Klan Act.
DUFFY RICE: Don't you love that we have stuff like that? It was passed by Congress in 1871, and it gave Americans the right to sue public officials who violate their rights. I mean, it was pretty straightforward, right? It said every state official who causes a, quote, "deprivation of any rights" guaranteed by the Constitution and laws "shall be liable to the party injured." And that's pretty clear, right? Like, if you get beat by the police officer, you get to sue the police officer.
MERAJI: So this law, the Ku Klux Klan Act, made it possible to sue a host of public officials because many of them were Klan members or sympathetic to the Klan. And those officials likely interfacing with the public most often were the police.
DUFFY RICE: We know that, like, the history of white supremacy in this country is closely interwoven with the history of law enforcement. Either racist behavior by civilians has been overlooked by law enforcement or law enforcement are openly and proudly racist white supremacist members of the KKK and are willing to sort of use their badge and their power to harm Black people. So the idea of this act was basically that there should be some ability for anybody, but especially for Black people, to seek relief in court when someone who's a public official has mistreated them.
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DEMBY: For nearly a century, Josie says, this was how the law was understood. And there were instances in which people did successfully sue the police, as was intended.
DUFFY RICE: So in 1961, there's this kind of interesting case called Monroe v. Pape, where this Black family, the Monroes, sued Chicago police officers. And these police officers had basically, in the, like, wee hours of the morning, broken into these people's house, rounded them up, made them stand completely naked in the living room, searched every room, going through all their private stuff, you know, ruining their furniture, like, ripping covers off of mattresses and going through their drawers. And then they arrest James Monroe, who was the father in this family. And they detain him, and they question him for hours.
DEMBY: The Monroes decided to sue. And after their case made its way through the court system, the Supreme Court said the Monroes could sue those officers who harassed them, and they could do so under the Ku Klux Klan Act.
DUFFY RICE: And basically, they say, like, this is the whole point of the Civil Rights Act of 1871, right? Like, the whole point is that when an official abuses their position, there is some remedy outside of the criminal court that people have to hold that official accountable.
Now, that's an interesting case for many reasons. Like, I think one is, obviously, this family's Black. And the courts have not traditionally been particularly sympathetic to Black people in America, you know, during this era. I mean, this is a few years after Brown v. Board, right? Like, this is a few years before the Voting Rights Act. Like, this is an era where the Supreme Court has some moments of clarity around race in America.
MERAJI: But not long after the Monroe case was decided in 1961, America's posture towards policing and crime started to change. In the hot summer of 1964, a white off-duty cop shot and killed a 15-year-old Black ninth-grader named James Powell in New York City.
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MERAJI: And what followed was days of rioting in Manhattan and Brooklyn. Just a month after that, in Philadelphia, another instance of police brutality set off days of rioting there. Barry Goldwater, the conservative Republican running for president at the time, warned his supporters about the dangers of crime in the streets. And President Lyndon Johnson, seeing white fears about the unrest as a possible threat to his reelection, declared a war on crime.
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PRESIDENT LYNDON JOHNSON: But the people also recognize that the national government can and the national government should help the cities and the states in their war on crime to the full extent of its resources and its constitutional authority.
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DEMBY: Among the many things that LBJ proposed was expanding the ranks of the police across the country, adding thousands of new officers to city streets. And not only do the ranks of police officers expand, but so did the already considerable protections extended to them. Soon, the Supreme Court tightened the rules from the nearly century-old Ku Klux Klan Act that allowed people to sue the police. And in 1967...
DUFFY RICE: The Supreme Court invents this thing called qualified immunity. And they sort of say this is like a small exception to the rule, OK? If a public official acts in, quote, "good faith" and believes that their conduct is authorized by law, then they are not accountable, right? So that was giving, like, some level of out to public officials.
DEMBY: And from there, the constraints on the so-called Ku Klux Klan Act kept getting tighter and tighter. And 15 years later, the courts decided to change the criteria for suing public officials again. They decided that it didn't just matter if a public official was acting in good faith.
DUFFY RICE: But even if officers or officials act maliciously, unless the victim can show that his or her right was, quote, "clearly established," they basically can't get any relief. And so this is just an example of where courts make law, right? Because what the law said, you know, from 1871 said if you violate someone's rights, you owe them, right? You're liable. And the courts came in and said, well, we actually think that, like, you're liable, except this, and you're liable, except that. And all the sudden, what you see is a situation where nobody's liable.
MERAJI: And that's where we are today.
DEMBY: Right. And, of course, judges don't have to interpret or defer to qualified immunity in this way. But Josie says there are a few reasons why they might want to. For one, they might not want to rule against cops because they're sympathetic to the police or because they want to avoid blowback from police departments. Other judges may decide to defer to qualified immunity for the police because they're sympathetic to how it protects police from being sued to the point of poverty.
DUFFY RICE: Like, here are these officers that have to make split-second decisions. They're in dangerous situations. They have to, you know, decide what they're going to do kind of quickly on their feet. There's obviously room for things to go wrong. But we want officers to make - you know, we don't want them to not do something necessary because they're worried about going bankrupt.
MERAJI: So we've been talking this entire time about how hard it is to sue police officers. But some victims of police abuse have received compensation over the years.
DEMBY: Right. Because between 2004 and 2019, the city of Chicago paid out $757 million to settle lawsuits against the city's police department. In just the year 2018 alone, the New York City Police Department paid out $230 million to settle claims. It's to the point where some cities just allocate for millions of dollars in police settlements in their yearly budgets. And Josie says that, look; these substantial payments to plaintiffs are definitely much larger than they would get if they sued individual police officers, but qualified immunity has the effect of offloading all those settlements onto taxpayers.
MERAJI: High-profile Democrats and some libertarians have called for the end to qualified immunity - Democrats like Senators Kamala Harris and Edward Markey, Cory Booker. Ayanna Pressley, who's a Democratic representative from Massachusetts, co-sponsored a bill with libertarian Justin Amash that would eliminate qualified immunity. But the fight over qualified immunity has become, like everything else in Washington, a mostly partisan one. Tim Scott, the lone Black Republican in the Senate, called any attempt at doing away with qualified immunity a, quote, "poison pill" for bipartisan police reform efforts.
DEMBY: Back in June, when we talked to Josie, the Supreme Court was actually weighing whether to take another look at qualified immunity. But the court decided not to. And in a sign of just how weird this moment is politically, Shereen, the only justice who wanted to take up the question this go-round, because he was skeptical of how the doctrine was applied, was Clarence Thomas, who is arguably the most conservative member of a pretty conservative-leaning court.
MERAJI: We are living in interesting times.
DEMBY: Understatement.
MERAJI: Although, to be fair, Sonia Sotomayor has been critical of qualified immunity. She just chose not to take it up for this next term.
DEMBY: This is very true. That's very fair.
So I asked Josie, OK, everyone is paying attention to qualified immunity now, from organizers and protesters to some lawmakers. Would getting rid of this legal doctrine make it easier to rein in bad policing? And she said, yes, getting rid of qualified immunity would probably help. But we have to remember that a doctrine like qualified immunity is the result of the almost boundless discretion and power we afford to the police, not the reason for it.
DUFFY RICE: The problems of law enforcement are so much broader and so much more systemic that I don't expect that shifting qualified immunity alone will really result in a total change of behavior among cops, right? What we see in police misconduct is so deeply entrenched in the culture and is so reflected in how our culture protects police at every juncture that qualified immunity is like one drop in the bucket.
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DEMBY: All right, y'all. That's our show. Before we go, we want to give you a heads-up about another CODE SWITCH ep that's dropping in your feeds later this week.
MERAJI: Our very own Karen Grigsby Bates did a deep dive on what it means to be a Karen.
KAREN GRIGSBY BATES, BYLINE: Again, to me, Karen is no longer the sort of annoying person who, like, wants to see your manager. She's the one who's willing to mobilize violence against you because she can.
MERAJI: So can't wait to hear that. Karen, get your tissues out - not our Karen.
DEMBY: Not all Karens - #NotAllKarens.
MERAJI: (Laughter).
DEMBY: You can follow us on Twitter. We're at @NPRCodeSwitch. You can follow Shereen at @RadioMirage - that's all one word - and me at @GeeDee215. That's @GeeDee215. We want to hear from y'all, so our email is codeswitch@npr.org. And subscribe to the podcast on NPR One or wherever you get your podcasts.
MERAJI: This episode was produced by Jess Kung and edited by Leah Donnella. Nico Espiritu looked over some of the legalese. Big thanks to him. Full transparency, he's my partner and a civil rights attorney.
DEMBY: And shoutout to the rest of the CODE SWITCH masses - Kumari Devarajan, Karen Grigsby Bates, LA Johnson, Natalie Escobar, Alyssa Jeong Perry and Steve Drummond. I'm Gene Demby.
MERAJI: And I'm Shereen Marisol Meraji.
DEMBY: Be easy, y'all.
MERAJI: Peace.
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