A police officer slammed a 5-foot-tall mother to the ground in front of her children, causing her to lose consciousness. A court threw out her case against the officer before it could go to a jury. An officer drove his SUV into the path of a fleeing motorcycle, killing the driver. The court tossed the case. Police officers fired at a family’s dog, but instead shot a 10-year-old boy lying on the ground with five other children. The court dismissed the case. Again and again, officers have escaped legal accountability for their brutal violations of the Constitution. And in Maine and across the country, those violations disproportionately affect Black, Latinx and indigenous people.

This impunity is made possible by a legal doctrine called “qualified immunity.” It sounds like something out of a musty law textbook, but it prevents victims of police brutality from obtaining justice under civil rights laws. Qualified immunity allows courts to throw out any case against an officer – even when the officer’s actions are unconstitutional – unless there is another court case finding that an officer violated the Constitution by committing the same abuses in the same circumstances. And it allows courts to do so without even deciding whether the officer’s actions were constitutional.

For the rest of us, ignorance of the law is no excuse. But law enforcement can get away with even brutal constitutional violations by claiming they couldn’t have known their actions were illegal because there wasn’t an earlier court case holding those exact same actions illegal. And that replica case often doesn’t exist precisely because earlier courts have done the same thing, tossing cases out based on “qualified immunity” before getting to the question whether the Constitution was violated.

How similar does the replica case have to be? A court recently dismissed a case against officers who stole more than $200,000 during a search, concluding that existing cases didn’t clearly establish that it was illegal for police to steal cash (even though earlier cases found it unconstitutional to steal other objects, like a watch). The court threw the case out without deciding whether the theft was unconstitutional, paving the way for future officers who steal money to rely on qualified immunity, too.

“Qualified immunity” does not appear in the Constitution or any statute. It was invented by the Supreme Court to limit public officials’ responsibility for constitutional violations. The doctrine has since been expanded to, in Justice Sonia Sotomayor’s words, provide an “absolute shield” for police officers accused of using excessive force. Even after the 2014 killing of black teenager Michael Brown by the police in Ferguson, Missouri, the court has continued to expand qualified immunity. A comprehensive study by Reuters found that, between 2017 and 2019, appellate courts used qualified immunity to throw out excessive force claims against police officers in 57 percent of cases, compared to 44 percent a decade earlier. In the Supreme Court’s recent formulation of the doctrine, qualified immunity now protects “all but the plainly incompetent or those who knowingly violate the law.”

The good news is that lawmakers can fix qualified immunity. On Monday, congressional Democrats unveiled the Justice in Policing Act, co-sponsored by Rep. Chellie Pingree, which would reform qualified immunity to make it easier to hold officers legally responsible. We urge Maine’s entire congressional delegation take a leadership role in ending qualified immunity. And at the state level, we encourage the Maine Legislature to end qualified immunity under the Maine Civil Rights Act.

Every judicial appointment matters. Next term, the Supreme Court will hear two police officers’ appeal of the denial of qualified immunity for beating a college student until he was unconscious. It is often a single judge who decides whether to throw out a case on qualified immunity grounds. We urge our U.S. senators, Susan Collins and Angus King, to commit to supporting judicial nominees who will hold police accountable.

Ending qualified immunity will not end police violence, but is an important step toward holding police accountable.  Even Justice Clarence Thomas, the Supreme Court’s most conservative member, recently expressed “growing concern” with qualified immunity. Democrats and Republicans can agree that no one is above the Constitution – especially not the government officials who have sworn to protect it.


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