The End Of Unaccountable Law Enforcement Is In Sight

Republican extremism has inadvertently paved the way for this extraordinary moment in American legal history.

Photo by Tito Texidor III on Unsplash

by Justin Rosario

On Sunday, May 19th, a deaf and blind dog, Teddy, got out of his owners yard, lost his collar in the process, and wandered around the neighborhood before stopping to rest in a random person’s yard. The person, not knowing who’s dog it was, gave Teddy some water and Teddy nuzzled the stranger because Teddy was a really affectionate and completely non-violent pet. 

Eventually, not knowing what else to do, the person called the cops and asked if they could find Teddy’s owner, stressing that Teddy wasn’t dangerous, just chilling out in the yard and needed help. An officer showed up and shot Teddy to death within minutes of arriving on the scene.

Video of the murder, and it was a murder, did not show Teddy being aggressive in any way whatsoever. The cop’s justification? He thought Teddy was sick and/or injured so this was the most humane thing to do. When that story wasn’t cutting it, the city concocted a story about Teddy potentially having rabies and the officer having to kill him out of an abundance of caution.

If you or I shot someone’s dog on camera for no reason, we would be arrested and charged with cruelty to animals. While public outrage may force the city to fire the officer, and there’s no guarantee of that, there is almost no chance he will be charged with a crime.

Why? Because the police were granted immunity from the law by the Supreme Court over half a century ago, giving them an almost unlimited amount of power. But in their zeal to overturn Roe, the Republican extremists on the high court inadvertently opened the door to holding the police accountable again. The end of the police as untouchable overlords is in sight.

To Protect And Serve

I started this article with the sad story of Teddy because I wanted you to understand exactly how utterly out of control American law enforcement is. We read so many headlines about the police killing unarmed civilians, often minorities, frequently mentally ill, that they blur together. We have become accustomed to the lack of accountability.

But dogs? Who shoots a dog (besides Republicans like Kristi Noem)? And how can they get away with it? The cops can get away with almost anything, including slaughtering thousands of dogs a year with impunity. Yes, you read that correctly. Thousands.

Criminal Legal News has the horrible details:

Cops in this country kill so many dogs each year that a specialist at the Department of Justice’s (“DOJ”) community-oriented program services office says it has become an “epidemic.” The DOJ estimates that around 25 to 30 dogs are killed by cops every day, with some numbers as high as 10,000 per year. The totals could, in fact, be higher, since most police agencies do not formally track officer-involved shootings involving animals.

In Detroit, cops killed at least 25 dogs in 2015 and 21 before the first half of 2016. According to police records, two detectives had killed at least 100 dogs between them over the course of their careers. Meanwhile Metro Atlanta cops kill on average 50 dogs per year, and a Buffalo, New York, news channel investigation found that police there killed 92 dogs over three years, with one officer having killed 26 himself.

A single officer even firing their gun, never mind actually killing something (or someone), 26 times in the course of their career, much less within three years, should cause the department to question their stability. This isn’t a TV show where cops get into firefights every other week to keep the audience entertained. It is unusual for the police to fire their guns repeatedly in a calendar year. To kill this often strongly suggests a pattern of seeking out dogs with the explicit intent of killing them — or more specifically, the behavior of a serial killer. 

But we don’t question officers. Or hold them accountable. Or even hear these stories. There’s a cop in Buffalo who clearly gets off on killing dogs. I wouldn’t hold my breath waiting for accountability, at least until homeless people or prostitutes start to go missing (serial killers tend to escalate from animals to humans).

We find the same lack of oversight with cops who verbally abuse the public, beat people to a pulp, steal property and rape women in the back of their police vehicles. The police have always enjoyed too much power, but starting in 1967, the Supreme Court gave the police near-total protection from the consequences of their actions. Judd Legum at Popular Information explains (bear with me, the context is important):

After the Civil War, "white supremacists unleashed waves of terrorism across the South." They were able to act with impunity because, in many cases, "judges, politicians, and law enforcement officers were fellow Klansmen and loyal sympathizers." In response, Congress passed the Ku Klux Klan Act of 1871. The Ku Klux Klan Act imposes liability upon any person who, acting under color of state law, deprives another of a federal right.

The text of the Ku Klux Klan Act had no exceptions or immunities. And, for many decades, the courts simply enforced the law and imposed civil penalties on law enforcement officers who violated the constitutional rights of another person. 

That all changed in 1967 when the Supreme Court considered Pierson v. Ray. The case involved Black ministers who were arrested for entering a "Whites Only" bus terminal waiting room. The ministers beat the criminal charges in court and then sued the police officers who arrested them, arguing their constitutional rights were violated. 

From here, the Court granted the officers “qualified immunity” and just created a new legal standard by reversing the purpose of the KKK Act. Now, racist cops could run rampant and we could all just politely pretend it was OK:

Almost 60 years later, qualified immunity "protects public officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." What does it mean for a right to be "clearly established?” Courts have found that a clearly established right "is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Put another way, qualified immunity "protects all but the plainly incompetent or those who knowingly violate the law."

In every other instance, ignorance of the law is no excuse for criminal behavior. You or I cannot claim we did not know it was illegal to rob a bank, or wrong to set a house on fire. But the police are. This quite literally encourages the people meant to uphold the law to know as little of it as possible.

What is the result of this? When there are no consequences, there is escalation. If one country invades another and no one intervenes, why wouldn’t they invade another? If a political party tries to violently overthrow an election and no one goes to jail, what is stopping them from trying again until they succeed?

And we all know the story of American law enforcement. They’ve become a heavily armed and deeply hostile force of violence in our nation. When the rule of law does not apply to you, why wouldn’t you become all but lawless?

Why do you think American law enforcement has such a white nationalist problem? Yes, a good deal of it is from a long-term plan to infiltrate the military and police.¹

Just as pedophiles seek out organizations like the church and the Boy Scouts where they can follow their perversion with a level of protection, so too, do violent racists seek out jobs in law enforcement.

Where else can they visit misery and suffering on the people they hate and face no consequences? Where else can they kill and be rewarded for it, hailed as a hero? It would be more surprising if law enforcement didn’t have a white nationalist problem considering the long legacy of police racism and violence. 

Because of qualified immunity, the police have come to think of themselves as untouchable. When Black Lives Matter came on the scene and the public started to demand real reform, the police reacted poorly. And by “poorly,” I mean they rioted in the streets. All across the country, cops violently lashed out at peaceful protesters in a blind rage. 

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The Guardian just released a piece about how bad it was:

Floyd’s killing, on 25 May 2020, was captured in a viral video and prompted millions of people to take to the street across the country in protests that led to about 17,000 arrests in the first two weeks alone. (The killing also resulted in a rare criminal prosecution of a police officer – Chauvin is serving a 21-year sentence at a federal prison, along with a concurrent state sentence.) While the vast majority of protests were peaceful, police regularly responded in full riot gear, kettling demonstrators and making mass arrests for non-violent offenses like curfew violations. Often, they fired less-lethal weapons into crowds, on several occasions leading to permanent injuries.

As long as qualified immunity exists, the police will continue to escalate their violence until they break the very society they’re supposed to safeguard. But the days of qualified immunity are numbered.

So how did the Dobbs decision overturning Roe v Wade open the door to ending 60 years of police unaccountability?

We can thank a very clever federal judge in Mississippi.

Rejecting precedent goes both ways

Recently, the police tried to use qualified immunity to escape accountability (as they often do) for egregious police misconduct in a murder case in Jackson, Mississippi. But Judge Carlton Reeves said, “You know what? We’re not playing this game anymore.” And so he launched a broadside at the doctrine of qualified immunity. 

The genius part is how he did it. Judd Legum explains again:

Reeves found that using the Supreme Court's existing standard, Thomas is not protected by qualified immunity. Moreover, Reeves ruled that the doctrine of qualified immunity itself is legally unsound and should be discarded. Qualified immunity does not appear in the Ku Klux Klan Act or the Constitution. Reeves argues that if Congress wanted to give law enforcement officers qualified immunity, it could pass legislation. But Congress chose not to do so. 

If that sounds like a mouthful of legalese, it kind of is. But, it is the exact legal reasoning the Republican Justices on the Supreme Court have been using to gut everything from voting rights to reproductive rights to the ability of the EPA to regulate carbon emissions. 

Here’s where Dobbs comes in:

The most compelling reason to leave qualified immunity in place is the doctrine of stare decisis. Under this theory, since qualified immunity has been established precedent, law enforcement officers have grown to rely on it. Therefore, the Supreme Court should be hesitant to eliminate it. 

What this means is that if something has been the law of the land for long enough, say, half a century, the courts would leave it alone. Once upon a time, the judiciary placed a huge amount of power in the idea of stability. That way, the country would not make wild swings back and forth depending on the makeup of the courts. But then Republicans finally got the 6-3 majority of extremists they’ve been working towards for the last 40 years and stability became old-fashioned. Now it’s all about the exercise of raw power:

But Reeves argues that the Supreme Court's decision in Dobbs, upending "50 years of precedent" and eliminating "the Constitutional right to a pre-viability abortion," negates this concern. In Dobbs, opponents of abortion rights argued that the Supreme Court, in recognizing abortion rights, had “short-circuited the democratic process” and “necessarily declared a winning side” in a long-running social controversy.

Oh. Well, if we don’t have to worry about precedent anymore, then all kinds of things are on the chopping block. And not just stuff Republicans want to get rid of:

Reeves notes that the case for eliminating qualified immunity is stronger than the case for eliminating abortion rights. In Roe, the Supreme Court created a Constitutional framework around an issue where Congress had not acted. In Pierson, the Supreme Court created qualified immunity and negated a standard explicitly established by Congress with the Ku Klux Klan Act. It should be much easier, Reeves says, for the Supreme Court to conclude that Pierson was "egregiously wrong from the day it was decided." 

Will the far right Justices of the Supreme Court strike down qualified immunity? Of course not. Turning the police into a fascist army for a dictator to wield against the population is part of the right’s ongoing project to end American democracy. Keeping law enforcement above the law is crucial.

However, this is a legal theory that now exists out in the world. If Democrats defeat the GOP in November and again in 2028, they will take control of the Supreme Court. Just like the right had a laundry list of cases ready to go when they took control of the Court, so will Democrats. 

Gerrymandering? Gone. Voter ID? Done. The Voting Rights Act? Restored. Reproductive Rights? Protected.

But now, there is a clear path to ending qualified immunity and all the shrieking of the right will fall on deaf ears. They wanted judicial activism? No such thing as settled law? OK. This is what that looks like. At long last, America’s out of control police force will have its “constitutional” shield removed and they will face the justice they’ve denied so many others for so long. All thanks to the Republicans of the Supreme Court. 

The irony is to die for.

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1. If you were not aware of this, this plan has been in motion for decades. Well over 20 years. The FBI knew about it for a long time and did…nothing. They eventually got around to warning local law enforcement. Very helpful.