Writing for the conservative Bulwark, the vice president for criminal justice at the Cato Institute explained that the time has come for police officers who have been accused of crimes be treated like any other Americans and not be handed the shield of "qualified immunity" that protects them from paying the price for breaking the law.
As Cato's Clark Neily wrote, in light of the death of George Floyd at the hands of four Minneapolis police officers -- now all fired -- it is time for a reappraisal of legal protections provided to law enforcement personnel.
Advising anyone who had not seen the video of Derek Chauvin kneeling on George Floyd's neck before he died to do so, Neily set the stage for his proposal.
"If you can’t understand why large swaths of urban America have been in flames these last few nights, do two more things: (1) instead of George Floyd, who you probably don’t know, imagine the person pinned under Chauvin’s knee—prone, handcuffed, unresisting, and begging for mercy—was someone you love; and (2) listen to conservative pundits dissecting Chauvin’s merciless assault on Floyd with all the sangfroid of a referee performing an instant replay review to see whether the runner’s knee was down when the ball came loose," he wrote before adding. "No wonder it seems as though the country is coming apart at the seams."
Explaining "qualified immunity," he wrote: "In determining the relationship between government and governed, one of the most important decisions a society can make is how accountable those who wield official power must be to those against whom that power is wielded. Congress made a clear choice in that regard when it passed the Enforcement Act of 1871, which we now call 'Section 1983' after its location in the U.S. Code. Simply put, Section 1983 creates a standard of strict liability by providing that state actors 'shall be liable to the party injured' for 'the deprivation of any rights.' Thus, if a police officer walks up to your house and peeks inside one of your windows without a warrant—a clear violation of your Fourth Amendment right against unreasonable searches—he is liable to you for the violation of that right."
However, he notes, law and order conservatives had other ideas.
"In their preference for a more forgiving policy that gives police and other government officials substantial leeway in the exercise of discretion, they abandon their stated commitment to textualism and embrace an 'interpretation' of Section 1983 that is utterly divorced from its text," he explained. "The vehicle for this conservative brand of what we might call 'living statutory interpretivism' is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of 'any rights' — as Congress expressly provided—but rather the deprivation of any 'clearly established' rights."
That, the columnist notes, needs to go back to the way the statute was intended.
"So now back to the killing of George Floyd. Watching that horrific video, one cannot help but notice the look of utter complacency on the face of Derek Chauvin as he drives his knee into Floyd’s neck. There is no life-or-death struggle—indeed, no struggle at all; nor is there any evident anger or passion—there is simply the banality of a man wearing a badge, surrounded and supported by other men with badges, methodically squeezing the life out of another human being," he wrote. "Cities are burning, and many people are venting their rage—yet again—about how cavalier police have become with the use of force, including lethal force, against the very citizens they are sworn to protect. Those people are right to be angry, and they’d probably be even angrier if they understood that it was never supposed to be like this—that Congress specifically chose a system of robust government accountability that was repudiated and perverted by the Supreme Court."
Noting the Supreme Court will take up the matter of qualified immunity this week he warned, "It will be particularly interesting to see which self-styled conservatives—on and off the Court—place their stated commitment to textualism and judicial deference above whatever personal preference they may have for continuing our half-century experiment in near-zero accountability for law enforcement."
You can read the whole piece here.