Shielding The Shield

To those of us of a certain age, who vividly recall the civil unrest and social upheavals of the latter 1960s and the early 1970s, one observation seems notable. Despite the cries of “Police brutality!” which punctuated so many of the protests and violent responses of that era, it seems that cases egregious abuses of individuals by police were less prominent, and that cases of police excesses that result is serious bodily harm or even death of those in police custody were less common than they have been in the past three decades or so.

It is, of course, quite possible that reporting and coverage is simply more complete and more thorough than it had been in the past. As became clear with the case of Rodney King in 1992, the widespread availability of video cameras has meant that many actions that were once undocumented have been recorded in ways that drew natural public outrage. While it is true that we must always be alert to the fact that any single video is only one perspective, video evidence is very persuasive, and it could well be that this one technology, which has expanded by multiple orders of magnitude with the advent of smartphones, could explain the more frequently identified cases of official abuse.

However, it is of crucial importance to note a legal development that came about a decade before Rodney King’s high-profile beating at the hands of the LAPD. In 1982, our Supreme Court created a new and broadly applicable doctrine known as “qualified immunity” which broadly protects government officials from being sued to be held to account for their actions which violate Civil Rights and even established law. This doctrine was established in Harlow v Fitzgerald. It has been invoked in hundreds — possibly thousands — of suits asserting official abuse since it was created. An extremely high standard is established in this doctrine. Government officials are generally immune from being sued unless their actions violated clearly established federal law or Constitutional Rights.

This potent doctrine has been increasingly used to essentially excuse even cases of fatal force from police; concomitant with this increased application in cases of deaths at the hands of officials has been an increase in cases of public outrage and protest. One may well wonder: how can taking the life of a non-violent suspect not be a clear violation of an established right? Well, the courts have determined that Life is not a clearly established right, that’s how.

One could be forgiven for imagining that the words of our Declaration of Independence might serve as ample confirmation of a clearly established right to life: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

It can certainly be argued that this declaration is not organic law. It can equally be argued that this declaration is the de facto organic law of our republic ab initio; this is precisely what Abraham Lincoln asserted during his public and political career. Such an interpretation would mean that we Americans of any race, creed, or economic status are by right and organic law entitled to a right to life. From this follows that forcibly depriving anyone who is not acting with deadly, offensive force of life without clear due process is, in fact, a violation of their rights.

But such an interpretation does not currently exist. The deck is stacked. One can readily understand the volcanic frustration of those who see abuses continuing unchecked.

Jamie Rawson
2 June 2020

“I am ashamed the law is such an ass.” — George Chapman, 1598

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