Claims of excessive force against the police are difficult to prove. To make matters more difficult, until recently the evidence presented to justify the force used was typically only the testimony of the police officers involved, who routinely vouched for each other.  Even the proliferation of smart phones with cameras has not insured successful lawsuits against police officers.


Why?  Qualified Immunity


It does not matter what an officer’s intentions and motivations were when he or she used excessive force. The U.S. Supreme Court has narrowed excessive force cases to this singular issue: did the officer violate a “clearly established” statutory or constitutional right of the abused individual—a right the officer should have reasonably known violated the individual’s rights?


In a July 20, 2015 New York Times piece, Adam Liptak called attention to a recent article by Ninth Circuit Court of Appeals Judge Stephen R. Reinhardt published in May edition of the Michigan Law Review. Judge Reinhardt leveled the serious charge—one based on exhaustive research—that the Supreme Court has consistently made it impossible for individuals who have been abused by the police to have their claims heard by courts because the high court protects the police with the doctrine of qualified immunity.


“ … in the name of protecting officers from being held accountable for ‘minor’ errors made in the line of duty,” Judge Reinhardt wrote, “the Court has through qualified immunity [has] created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights.”


And what is the end result?


Tilted, Biased Decision-Making


Regardless of how egregious the constitutional violation may be against an individual, he or she cannot now obtain any relief from the Supreme Court unless they make a precise, almost impossible, showing that the factual circumstances of their case is virtually identical to those in a precedent decision by the Court. Judge Reinhardt pointed to 15 unsigned Supreme Court reversals of lower federal court decisions granting habeas relief to state prisoners between October 2007 and this year. This is significant because nearly 60 percent of the nation’s state prison population is comprised of African-Americans and Hispanics.


In contrast, federal court decisions holding government officials liable for misconduct, especially in police excessive force cases, during the same period were overturned and effectively dismissed by the Supreme Court. Most were white officials in cases in which the rights of minorities were violated.


This unexplained dichotomy raises many sensitive questions about the tendencies of our highest jurists.


This has spurred some legal experts to directly question the very integrity of the court. Judge Reinhardt, an appointee of former President Jimmy Carter and an unabashed liberal, said these kinds of decisions by the court have, as described by Liptak, “stunted the development of constitutional law.”


This criticism of the Supreme Court is not confined to a liberal judge on one of the most liberal appellate courts in the country. Fellow Ninth Circuit Judge Alex Kozinski, a Reagan appointee and an “ideological opposite” of Reinhardt, earlier this year called for an end to absolute immunity for prosecutors who engage in misconduct. He also agreed with Judge Reinhardt criticism of the Court’s handling of state prisoners’ cases in federal habeas proceedings, saying it often forces lower court federal judges to sit by in “impotent silence” in cases where an innocent person may have been wrongfully convicted.


Justices Hide Behind Unsigned Per Curiam Opinions


During the two-week period between August 13 and August 26, four federal courts of appeals—Fifth, Sixth, Seventh and Tenth—issued significant rulings that allowed five lawsuits against the police in excessive force cases to proceed. In all likelihood, these cases will be appealed to the Supreme Court by government attorneys because they know the police have a safe harbor there.  And these five lower federal court rulings will probably be vacated through unsigned per curiam opinions—a practice that allow the justices who issued such rulings to remain anonymous. During Chief Justice John Roberts’ tenure, approximately thirteen percent of all the court’s full opinions have been per curiam.


This means that these five appellate court rulings, issued by 15 judges who represent a broad ideological spectrum, could be reversed anonymously by the highest court in the land. That would be tragic. Excessive force claims against the police dominates news headlines these days. The recent roughhouse takedown of former tennis star James Blake in front of a Manhattan hotel by a police officer with a history of excessive force complaints illustrates this point. The New York police commissioner and mayor were forced to apologize to Blake because the police officer tackled and arrested the wrong man with excessive force.  A man who was clearly wrongly identified and most likely profiled.


Tennis Star Subjected to Excessive Force by NYPD


As in the James Blake case, and most other excessive force cases, the police officer was white and the victim African-American. 75 percent of the nation’s police forces are white and they arrest African-Americans at a rate three times higher than other races, according to a USA Today report last year. The majority, or at least the appearance of a majority, are younger African-American men who are profiled—quite often targeted—by white police officers zealous in their use of excessive force, even lethal force, to accomplish an arrest, more often than not for relatively minor crimes (Blake was suspected of being a credit card thief).


The lower federal courts are seeing more and more of these kind of excessive force cases and they are sending a message to the police that their misconduct will not automatically be shielded by the doctrine of qualified immunity. But this message could be muted by a Supreme Court that too often appears to be political tribunal rather that a respected court of law. The reason our justice system is plagued by prosecutorial and law enforcement misconduct is because, at the end of the day, prosecutors and police know they will be rescued from the fires of accountability by the Supreme Court through immunity doctrines.


This kind of decision-making raises some serious political, racial and social implications; most notably, whether the court’s decision-making is now governed by political ideology rather than the historical rule of law. When a conservative Reagan-appointed judge calls on the Supreme Court to end absolute immunity for rogue prosecutors, you know there are serious problems in the high court’s decision-making.