This month, the Supreme Court decided Kisela v. Hughes, a case that makes it even more difficult to hold police officers accountable for unlawfully shooting the people they are supposed to serve and protect. Police officers are almost never meaningfully investigated, much less disciplined, by their fellow law enforcement agencies for shooting people. And they’re even more rarely prosecuted. In the unusual instances when they are prosecuted, it has proven virtually impossible to get a conviction, even in cases when the shooting was captured on video. Because of these challenges, one of the only tools for holding police accountable for unjustified shootings has been to sue the officer and the department. These lawsuits often motivate change at the institutional level. The Supreme Court’s Kisela decision, however, will make those lawsuits much harder to win and even further reduce pressure to reform our deadly police institutions.
Law enforcement officers are often protected from lawsuits by a judge-made creation called “qualified immunity.” Under qualified immunity, if the unlawfulness of the conduct was not “clearly established” at the time officers violated a person’s constitutional rights, the officers cannot be sued. But in Kisela, the Court took an incredibly “one-sided approach to qualified immunity,” in how it defined the concept of “clearly established,” according to Justice Sotomayor. Justice Sotomayor argued that the Court’s conservative majority was transforming immunity “into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.” She warned that the Court’s decision “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
That shoot first, think later mentality is what we see with frightening regularity, particularly when the police encounter African American men. The statistics are truly staggering. The Guardian reported that in 2016, black males aged 15-34 were nine times more likely than other Americans to be killed by law enforcement officers. There are far too many examples. For instance, the Sacramento police officers who gunned down Stephon Clark in his grandparents’ backyard last month illustrate the trend. Officers fired twenty rounds at Clark over the span of less than five seconds. Clark was armed only with a cellphone. But the officers’ violent response is consistent with the way they’re being trained—to fire an unbroken barrage of bullets until the “threat” is “neutralized”—and as long as the officers claim that they were fearful for their safety, they escape criminal liability and they’re frequently found to be immune from suit. Of course, when won’t officers fear for their safety when encountering citizens, knowing that our country is awash in 300 million guns? Allowing immunity any time an officer claims fear gives police a license to kill citizens without recourse.
In fact, a West Virginia police department fired an officer for failing to shoot an armed black man. When Officer Stephan Mader responded to a suicide call and came upon a distraught man holding a gun and begging for the officer to just shoot him, Mader began trying to talk the man down and deescalate the situation. Mader’s colleagues arrived on the scene and immediately shot the man. Mader was fired and called a “coward” by his cohorts for failing to shoot an armed “threat.”
The more that police officers are absolved of shooting unarmed people, the stronger the argument becomes that it was not “clearly established” that they could not shoot first and think later. This is a vicious cycle that protects cops who gun down black men and boys—on a swing at the park, in their yards, shopping for a pellet gun at Walmart, during a traffic stop, running away, or, often, for just being. The Supreme Court’s decision makes it harder still to hold the police accountable. It makes a mockery of the concept that all people are created equal.