Few would have guessed that marches and demonstrations protesting police violence would divert the nation’s attention from the coronavirus pandemic. But that is what happened in late May and early June of 2020.

Citizens across the country were fed up with aggressive police tactics – especially rough (and sometimes fatal) treatment of black people who were not even suspected of doing anything wrong. The immediate spark was the killing of George Floyd in Minneapolis by a white police officer named Derek Chauvin. Floyd was suspected of passing a counterfeit $20. Had he been arrested, charged and fairly convicted of that, he could have received a sentence of less than a year in prison or a fine of no more than $3,000. Instead, Chauvin killed him.

The Floyd case came close on the heels of two other incidents. A woman named Breonna Taylor was shot by Louisville police who crashing into her home looking for someone who wasn’t there. Taylor was asleep in her own bed when she died. And Ahmaud Arbery was killed in Georgia by two white men (not police) while he was running for exercise on a public street.

Many insisted those were isolated events, that police violence is rare, and that the problem is limited to “a few bad apples” who only need to be rooted one by one out of the nation’s generally excellent police forces. Others added that perhaps better training, civilian reviews and less military equipment in police hands is also part of the solution. For the Congenial Iconoclast, police violence is yet another instance where America’s problems go down to the roots in the nation’s constitution.

Note the lowercase c in the last sentence. (Here is an explanation of the “Constitution” versus the “constitution.”) The Constitution says nothing about police tactics. But the more far-reaching and significant constitution (including court decisions, state laws, local ordinances, etc.) engender terrible injustice. It subverts the American principle of “Equal Justice Under Law.”  And it ensures that abuse of police authority will continue.

The constitutional culpability for police violence springs from two doctrines called “sovereign immunity” and “qualified immunity.”  

Sovereign Immunity

 Sovereign immunity is the notion that government is above the law and cannot be sued or held liable for anything it does. This was the rule for European kings, established back in the times when kings were thought to be appointed by God, if not actually gods themselves.

It is hard to believe that such a backwards notion could have taken hold in the United States. The country fought a war to establish a government of the people, free from the injustices of monarchies. The Constitution specifically prohibited government from giving special titles or ranks to anyone because those could lead to special privileges for some. But then they went ahead and adopted the rotten monarchical principle of sovereign immunity anyway.

Fortunately, the trend has been toward less and less sovereign immunity over time. As far back as 1792, in Chisholm v. Georgia, the US Supreme court ruled that Georgia was not immune and that a North Carolina citizen could sue Georgia over property it had seized. The very first Congress in 1789 passed the 11th Amendment saying federal courts cannot hear lawsuits where states are sued by people from other states or by foreign citizens — but not prohibiting states from hearing those cases. In 1821, Cohens v. Virginia, the Supreme Court ruled that it can review and overturn state decisions if constitutionality is in question.

The 14th Amendment in 1868 gave federal courts further scope to force states and their smaller subdivisions to account for their actions. Much advancement of civil rights has happened since 1868 under the provisions of the 14th Amendment.

Still, sovereign immunity persists in American society.

It is a serious question whether citizens ought to be allowed to sue government anytime they are displeased. If people could sue the city over every traffic ticket or rise in water bills, frivolous cases would clog the courts. But we should not lose sight of how shocking sovereign immunity is for a country founded on the idea that power derives from the people.

Qualified Immunity

Qualified immunity is separate from sovereign immunity. It is newer, more specific to police, and growing stronger in recent years.

Qualified immunity is the basis for many shocking cases, such as the 2011 decision in Brooks v. Seattle which determined that police using tasers on pregnant women during routine traffic stops was unconstitutional but that the police could not be prosecuted or punished because there’s no “clearly established” rule against it. The city later paid Brooks $45,000 to avoid a civil lawsuit. The officers involved were not held liable.

Government officials – especially police — are protected from legal accountability when they violate the constitutional rights of others. The notion of “clearly established” law in the key. To be clearly established, a law has to be officially adopted, widely publicized, validated by previous judicial or administrative actions, and very similar to the circumstances of the case it’s being applied to. It is easy to see how the “clearly established” principle excuses continued police abuses. Each case is bound to have unique characteristics. The bad cop’s lawyers argue that something about the case is unique and precedents don’t apply. Judges continue to acquit overly violent police as long as qualified immunity protects them.

Remember: qualified immunity doesn’t claim that brutal police are innocent; it admits they are guilty and insists their guilt doesn’t matter.

 Qualified immunity is not just a gross violation of the American principle of equal justice. It is a violation of American law expressed in 42 U.S. Code 1983, which was written in 1871:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

This was the policy for most of American history. The notion of qualified immunity emerged in 1982 in Harlow v. Fitzgerald, which first protected federal government officials from nuisance lawsuits. A series of later cases added strength to that idea by including state and local governments, protecting police officers particularly, and extending immunity to different types of infringements.

The latest step in the progress of qualified immunity is the Hernandez v. Mesa case, in which a US Border Patrol officer standing in Texas shot across the border and killed an unarmed Mexican child. Here’s the Wikipedia summary:

On June 7, 2010, Jesus Mesa Jr., a U.S. Border Patrol agent, shot and killed Sergio Adrián Hernández Güereca in the cement culvert separating Ciudad Juarez, Chihuahua, Mexico, and El Paso, Texas. At the time of the shooting, Hernández Güereca, a 15-year-old Mexican boy, was standing on the Mexican side of the Mexico–United States border, while the agent was on the American side. Hernández Güereca and several other boys had been playing around in the culvert – running up to touch the fence on the U.S. side of the border and then running back into Mexico. The agent claimed after the shooting that he had used deadly force because the boys had been throwing rocks at him. Cell phone video contradicted that claim.

Clearly shooting a child who isn’t breaking any law is wrong. Police later alleged that the boy was involved with smuggling. If that’s true, he should have been arrested and charged properly. He should not have been killed outright in a country that promises due process of law.

But the 5th Amendment doesn’t apply to the Hernandez case. Qualified immunity applies here because the case involves something new. It involves police brutality across a border. There’s no precedent for that, so the Supreme Court decided Officer Mesa could not be prosecuted and Hernandez’ parents had no case.

Justice Sonia Sotomeyer dissented from that decision. She is on record that American law is moving in a bad direction. She says the cases the Court sees and the decisions the majority hands down in recent decades are not just the sort of updating and elaborating on new circumstances that are inevitable. Rather, the Court and the law are steadily giving more power to police and other government actors and seldom doing anything to protect individual rights. 

We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force ... But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.

 Qualified immunity is a complex and rapidly changing topic. It goes deeper than the Congenial Iconoclast can follow. If you want to understand the subject really well, you need to go farther.

• Here, for example, is a lengthy article about qualified immunity from Cornell Law School.

• Here is a five-minute explainer video from the conservative Federalist Society.

• And here is an hour-long discourse and webinar presented by the libertarian Cato Institute.