The American policing and criminal justice system is a complex machine, soldered together from a variety of tools and tactics of oppression. By purpose, design, and effect, the system bars access to justice and equality, especially for people of color and the poor. Some of its tools are obvious: a heavily militarized police and systematized degradation of Black lives and the lives of other people of color. Some tactics, however, are subtler. Among these less visible measures is the odd legal doctrine of qualified immunity, which has recently drawn increased attention — including legislative proposals for its repeal — in the wake of widespread protests following the killing of George Floyd.

A doctrine developed through a series of judicial decisions, several of which are discussed below, qualified immunity, shields public officials — including police officers, prison staff, and federal agents — from liability for constitutional violations unless a “reasonable officer” would have believed that the unconstitutionality of his actions was “clearly established” at the time of his offense. During litigation, this translates to a simple question: is there a legal precedent in the relevant jurisdiction that clearly says that the officer’s actions are unconstitutional? In another twist, this means that if an officer is the first person to violate someone’s constitutional rights in a particular way, he can escape civil liability. Qualified immunity thus lives in a strange, fictional universe where law enforcement officers, police departments, and prisons refine their actions based on each new court decision. In reality, the actions of officers and departments are written more by broad policies as well as prejudices held personally and communally.

In endless examples, after victims of state violence finally clear the hurdles necessary to get into court — from surmounting potential language and financial barriers to securing counsel — qualified immunity slaps them back. For example, in May, a Reuters report highlighted the case of Johnny Leija, a mentally ill man killed by an officer while hospitalized for pneumonia. When Leija refused to accept treatment, the hospital called the police. Upon arriving, the police first shot Leija with a taser. When Leija turned his back, an officer tackled him to the ground and tasered him again. As he straddled Leija, the officer forced Leija face down to the floor. Leija died of suffocation. Leija’s family sued, alleging that the officer’s conduct violated the Fourth Amendment’s bar against excessive force. While the district court and appeals court initially found for Leija’s family, following the Supreme Court’s intervention, the Tenth Circuit essentially found that tasering, tackling, suffocating, and killing an unarmed mentally ill hospital patient was not “clearly established” as illegal. The officer walked away.

The result is preposterous, a miscarriage of justice of the highest order. It is also entirely normal, a natural and foreseeable result of qualified immunity.

Qualified immunity has deep roots in the lack of accountability for police officers engaged in racist and suppressive conduct against Black Americans. As applicable to constitutional violations, the doctrine developed in Pierson v. Ray (1967), a case brought by black and white clergymen who went on a 1961 prayer pilgrimage through the South to advocate for integration. When these clergymen tried to use a segregated bus waiting room in Jackson, Mississippi, a police officer arrested them. The clergymen sued pursuant to 42 U.S.C. § 1983, a key Reconstruction-era civil rights statute that allows lawsuits against state and local officials who deprive a person of their civil rights while acting under “color of law” and under which many cases involving questions of qualified immunity are brought. In response, the officer claimed that he sincerely believed that his conduct was legal.

Although it did not hold that qualified immunity protected the defendant officer, the Supreme Court established that state officers who commit violations in “good faith” and with “probable cause” can raise qualified immunity as a defense under § 1983. The Court has subsequently concluded that qualified immunity also protects federal employees from civil rights lawsuits brought against them.

Since then, qualified immunity’s protections for officers have only expanded. The doctrine has grown as a barrier to justice in three intertwined ways.

First: Whereas in Pierson the Court found qualified immunity to apply on the twin predicates of “good faith” and “probable cause,” those boundaries have blurred and disappeared. Instead, the Court began to utilize the “reasonable officer” and “clearly established” standards. The Supreme Court’s 1982 decision in Harlow v. Fitzgerald, a case concerning Nixon aides, highlights that transformation. The Harlow Court constructed qualified immunity as a device “need[ed] to protect officials” and to “encourag[e] the vigorous exercise of official authority.” The use of vigorous is telling. Qualified immunity is not intended to promote careful decision-making by those in trusted public roles. Rather, it aims to protect officials as they run up against and even cross constitutional lines. Far from a shield, qualified immunity is a tool in the arsenal, an ace in the hole, a get-out-of-jail free card. As applied to policing and prisons, this tool has yielded deadly results.

Second: The Supreme Court encourages the “vigorous exercise of official authority” by defining with increasing narrowness what it means for a law to be “clearly established.” This leads to results that run counter to clear principles of justice, as exemplified by the outcome of Leija’s case. In a per curiam decision, the Supreme Court instructed the Tenth Circuit to reconsider its original favorable outcome for Leija in light of Mullenix v. Luna, in which the Court noted that the qualified immunity analysis must be performed based on the case’s specific context and “not as a broad general proposition.”

But that can prove challenging. As the context that courts demand victims provide becomes increasingly specific, so-called “broad general proposition[s]” of constitutional rights and liberties are lost in a formalistic inquiry that does not hold justice, restitution, or accountability at its heart. To wit, in Ashcroft v. al-Kidd the Supreme Court held the plaintiffs seeking to refute qualified immunity must offer “existing precedent” that places the legal question “beyond debate.” But this is the law we’re dealing with — as any law student would tell you, lawyers operate in analogies and distinctions where virtually everything is subject to debate.

As defendants in litigation, police officers and prison officials have made good use of the fertile ground laid by the Supreme Court. They continuously seek a more cramped understanding of rights and a broader application of immunity for violations of those rights. As such, more and more public officials are able to be deemed the “first” to have violated a constitutional right in a specific way and, as a reward for their ingenuity, they escape legal liability.

Third: Prior to 2009, courts engaged in a two-step analysis, established in 2001 by the Supreme Court in Saucier v. Katz, to decide whether qualified immunity applied. First, a court determined whether an officer’s actions had violated the Constitution. Then, the court evaluated whether qualified immunity applied — that is, whether the right at issue had already been “clearly established.” In 2009, in Pearson v. Callahan, the Court eradicated the requirement that courts first adjudicate whether the government official’s conduct ran afoul of the Constitution. In a majority opinion by Justice Alito, the Court claimed that this change was to allow courts to avoid resolving difficult constitutional questions at the expense of “scarce judicial resources.”

As a result of Pearson, courts can leapfrog to the second inquiry: whether a right was “clearly established.” If they find that the right was not clearly established, they need not analyze whether the officer’s actions did in fact violate the Constitution. Pearson has thus dammed the creation of new, applicable precedent. As unprecedented constitutional claims arise — particularly with the advent of new technologies and legal analyses — if a court fails to engage in the constitutional inquiry and simply finds that the violation was not “clearly established,” nothing changes. The conduct’s unconstitutional nature will not be established despite the lawsuit. Consequently, officials, departments, and prisons can continue to evade liability for the exact same acts, no matter how often repeated.

Far from ensuring that police, prisons, and those nominally designated to protect us make choices that serve the public good, qualified immunity has perversely resulted in placing police and prisons above the law, relieving them of responsibility for their personal or institutional choices. Qualified immunity is thus designed in a way that protects abusive government officials from the people and communities whose civil rights they have violated.

Perhaps in the absence of qualified immunity, as the Supreme Court fears, state and federal law enforcement and prison officials would be overly restrained. But we have seen qualified immunity contribute to an environment where lack of police accountability is the norm and gross violations of the law and public trust by officers are protected conduct. As Justice Sotomayor put it in her dissent in Kisela v. Hughes, this resultant “shoot first and think later” mentality has dire consequences. Officers break into the wrong house and shoot a woman in her bed; they suffocate a man in the street with a knee to his neck; they shove a septuagenarian to the ground and ignore him as he lies bleeding from a cracked skull; they arrest reporters and put rubber bullets in the eyes of photographers.

The last few weeks — not to speak of the preceding decades — have demonstrated that police do not deserve the benefit of the doubt, that when given the grace afforded by qualified immunity, they remove the “qualified” altogether. When they are given grace, they abuse it. And when they abuse it, people die.

These last weeks are also a reminder of how systems that many of us are trained to see as fair — the police for one, but the courts for another — are anything but. As scholars like Michelle Alexander and Alex Vitale have shown, far from being colorblind tools of justice, policing and judicial systems are constructed in oppressive ways to the particular detriment of Black people and other people of color. Untwisting qualified immunity from the law is only one step necessary for a far-reaching transformation of the broader system of racial inequality of which policing is a crucial part. But it is a step that’s essential to ensuring that officers who abuse government power are held accountable when they violate the rights and lives of the very people they have sworn to serve.

Image – Demonstrators protest against police brutality on June 11, 2020 in New Haven, Connecticut. Members of the Latino community marched to highlight cases of police-related deaths and in solidarity of the Black Lives Matter movement. (Photo by John Moore/Getty Images)