The need to end qualified immunity for police

The reason that police can get away with literally murder is because of a doctrine known as ‘qualified immunity’ that gives wide latitude to police actions taken during the course of their duties. Furthermore, even when they do get sued and fines are levied, the city pays the fines, giving them even more reason to not feel constrained.

Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations—like the right to be free from excessive police force—for money damages under federal law so long as the officials did not violate “clearly established” law.

[Q]ualified immunity opponents contend that the Harlow Court got the balance wrong. Justice Sonia Sotomayor—who has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers”—captures the core of that critique in a recent opinion, which Justice Ruth Bader Ginsburg joined. As Sotomayor put it, qualified immunity “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.”

But the state of Colorado has removed qualified immunity and now police are personally liable if they commit egregious acts of violence. As a result of what happened to a family of women in Aurora, a lawsuit will be a good test of what the change implies.

When Brittney Gilliam left her house in Aurora, Colorado, one day last August, all the 29-year-old wanted to do was take her daughter, younger sister, and two teenage nieces to get their nails done. They’d been cooped up for months because of the COVID-19 pandemic, and when businesses finally started to open up, she planned a “Sunday funday.” 

But the family soon found themselves in a strip mall parking lot surrounded by police officers with guns drawn, demanding they get out of Gilliam’s vehicle. The girls—ages 17, 14, 12, and 6—all ended up facedown on the pavement of a local parking lot, while Gilliam was handcuffed and put in the back of a squad car. It would be another two hours before officers realized they’d wrongly identified the family’s SUV as stolen.

Five months later, Gilliam has sued the five officers who conducted the stop that day, putting each cop on the hook for up to $20,000. And she just might win; Colorado recently became the first state to get rid of its “qualified immunity” statute, which made it nearly impossible to hold individual officers accountable for wrongdoing.

If Gilliam’s suit succeeds—and the officers have to pay out of their own pockets—the case could signal to other states and lawmakers that reforming protections for cops is worth their time.

Let’s hope this starts a nationwide trend to end qualified immunity or at least place very stringent limits on its application. Then we might see less things like that above or what happened in Rochester, New York when police pepper sprayed a nine-year old child who was already handcuffed.

Outrage erupted and the phrase “She’s 9” was trending on social media early Monday after body-cam video footage emerged of police in Rochester, New York violently abusing a 9-year-old girl—including handcuffing her and then pepper-spraying her in the face while in the back of a cruiser.

“This is your last chance, or pepper spray’s going in your eyeballs,” one female officer tells the young girl, handcuffed and sitting on the edge of the police car’s back seat during events that took place Friday.

According to reporting, the police had responded to a family dispute but what resulted was a horrifying scene of multiple officers abusing a clearly traumatized and emotionally distressed young girl.

“I want my dad,” the girl can be heard crying to the female officer. The girl later says, “No! You said you were gonna pepper-spray me. No, please, stop!”

Subsequently and from the other side of the cruiser a separate officer can be heard saying, “Just pepper spray her at this point.” Moments later, the hand of a male officer whose body camera is recording the situation can be seen reaching out with a can of pepper spray and says “Here.” As the young girl begins screaming and asking the police repeatedly to “Please wipe my eyes, please!” the male officer announces, “I got her. I got her.”

As the Times notes, the incident on Friday “has brought renewed scrutiny to the Rochester Police Department, months after the city was roiled by the disclosure that Daniel Prude, a Black man, suffocated to death last year after Rochester police officers had placed him in a hood.”

Later in the day, Mike Mazzeo, president of the Rochester Police Locust Club, held a press conference where he defended the officers’ actions and even went so far to say that the young victim could have been hurt worse if they had acted differently.

That is typically the attitude of police union officials, to say “What are you whining about? She wasn’t shot dead, was she” Though if she had been shot dead, he would still say it was justified.

Here is video of the incident.

Notice that there seems to be at least five police officers on the scene to deal with a child having a breakdown and they still felt they had to pepper spray her.


  1. Dunc says

    I’m not watching the video because I don’t watch videos of child abuse, but from the description it’s pretty clear that they didn’t feel they “had” to pepper spray her. They just wanted to. They wanted to hurt her, and knew they could get away with it.

  2. rich rutishauser says

    “unbelievable” the cop says at the end of the video. Indeed.

    Cue the apologists who will say we didn’t see enough video for context…what context do we need to justify a 9 year old in cuffs, in the back of a police cruiser, calling for her dad.


  3. sonofrojblake says

    What always strikes me in these cases is how weak and terrified cops in the US are. What are these people made of, wet tissue paper?

    I’m getting on in years, over fifty, and thanks to Covid and two disastrous leg injuries my fitness is not what it was. My days of training in various martial arts are behind me. Any badassery I may once have fantasised about being able to whip out if required is long, long gone. Even now, however, basically able to walk about the place as I am, I don’t think I’d be coming across as a hopelessly deluded keyboard warrior if I posited the idea that I’d be able to hold my own physically, without help, against a nine-year old girl. Especially one in handcuffs.

    I mean -- multiple officers were fine with pepper spraying this person? This must surely have been the Connor McGregor Clegane of nine-year-old girls to have them that scared.

  4. mediagoras says

    Creating such a broad qualified immunity doctrine essentially makes a nullity of the “life, liberty, or property” clause of the Fifth Amendment. What, then, is the point of having that clause in the Constitution?

  5. Pierce R. Butler says

    If Gilliam’s suit succeeds—and the officers have to pay out of their own pockets—the case could signal to other states and lawmakers that reforming protections for cops doubling down on immunity is worth their time.


  6. sonofrojblake says

    Another thing occurred to me: I’m not much of a fan of toxic masculinity, but it seems Rochester police need some badly. In a properly toxically masculine environment, such as I would have expected of the police force of almost any other country outside northwestern Europe, any adult male officer who couldn’t control a nine-year old girl without resorting to handcuffs, much less pepper spray, would very quickly find himself given a disparaging female nickname, find all his workwear mysteriously dyed pink and his locker covered in My Little Pony stickers, to demonstrate in case he didn’t get the message by other means that none of his colleagues held him in anything but the deepest contempt. No officer who did such a thing could hope to continue a career. And yet in that force it’s obviously more than acceptable. Baffling.

    Consider: you’re a cop in a sticky situation. You call for backup. And this chap turns up. Now: assuming you haven’t called for backup because you’ve been cornered by a TEN year old girl… how confident are you in your colleague’s ability to help?

  7. Dunc says

    It’s not about fear, and it’s not about not being able to control her. She’s handcuffed and in the back of the car already, so she’s already completely under control. It’s simply about inflicting pain on someone small and helpless. It’s sadism, pure and simple, and plenty of it happens in the police forces of Northwestern Europe too -- they’re just usually a bit more careful about not being recorded doing it. It’s of a piece with their notorious habit of shooting shooting people’s pets for no reason other than that they can.

  8. Dunc says

    It also shouldn’t need pointing out that toxic masculinity provides absolutely no protection against being a sadistic child abuser. Quite the contrary, in fact. Cultures which are rife with toxic masculinity are also notoriously prone to child abuse and violence against women, to the extent that it’s a fucking cliché.

  9. lanir says

    @sonofrojblake #8:

    That assumes they’re being oppressed by toxic masculinity when in fact it would be far more likely to elevate and prop up the entitlement they already feel. And then it starts feeding the problem.

    Toxic masculinity is bad because it stresses people unnecessarily and because it has the same issues as a dictatorship: lack of accountability and a requirement to trust absolutely in people who were selected via less than trustworthy reasons. I feel like it would be gasoline on the fire more often than not.

  10. sonofrojblake says

    I probably should have been clearer that I was being sarcastic about the toxic masculinity.

  11. Ridana says

    I did not watch the video so I could be wrong, but it sounds like her crime was not shutting up when told to. They weren’t afraid of her, and that probably won’t be their defense. They didn’t want to listen to her crying and were angry that she challenged their authority by not shutting up, so they chose the “stop crying or I’ll give you something to cry about” abuser’s tactic. Their defense would then be that she was out of control, and they needed to control the situation, i.e. her.

  12. GerrardOfTitanServer says

    Nit: Qualified immunity doesn’t let them get away with murder. It lets them avoid the wrongful death suit though. Qualified immunity is only protection for civil suits, and not criminal action. However, the same sort of legal thought in case law and public opinion has rendered cops basically immune to criminal murder charges too.


    But the state of Colorado has removed qualified immunity

    No, they haven’t. If you actually read the law, cops are still basically immune in their individual capacity to damages from civil suits. All of the news outlets are repeating this lie. Please don’t repeat this lie too.

    The individual cops are still not on the hook. The police department, and thus the taxpayers, are still paying, in basically every case. Nothing changed. You’re being conned. They replaced qualified immunity with a new law that is more or less exactly the same thing. No -- it’s actually worse than qualified immunity. At least with qualified immunity it’s a judge deciding if the conduct is so egregious that it doesn’t apply, but with this law, it’s the cop’s supervisor, aka another cop, who decides whether this new qualified immunity applies or not. This law is a huge step backwards.

  13. GerrardOfTitanServer says

    PS: I guess it might make it easier to recover money from the city, which is a win for the victim, but it’s also more protections for the abusers, which will just invite more abuse, which is IMO a huge net loss for victims of police abuse. Cops must love this new law.

  14. GerrardOfTitanServer says

    Now, if you want to know what I think needs to be done, here’s some things from my list that I maintain for funsies.

    Atwater Arrest without warrant shall be limited to cases where there would be an intolerable risk of significant injury to the public if the arrestor was required to first seek approval from a judge or magistrate in the form of a warrant for arrest. Arrest warrants shall not be issued for offenders who would be released on bail.

    Bail, Money Bond Money bond as a condition of bail shall be unlawful.

    Bail, Right To The right of the people to be released on bail pending trial shall not be unduly infringed, and determinations of bail shall be made according to the principles that it is better to let 10 guilty people go free than imprison 1 innocent person.

    Drug War The right to use recreational drugs shall not be infringed, nor shall any of the auxiliary rights be infringed, including the right to possess, buy, sell, transport, grow, and so forth. Further, there shall be a general amnesty for all prior convictions for these offenses.

    Forfeiture Forfeiture shall only be a criminal action against the owner of the goods, and forfeiture shall also require a separate criminal conviction for the underlying criminal conduct.

    Harlow v. Fitzgerald Standing armies have always been the enemy of the people. Therefore, there shall be no qualified immunity nor “good faith” defense for police regarding use of force which was later determined to be actually unlawful, including unlawful detentions, arrests, searches, and other seizures, and including use of weapons and brandishing of weapons.

    Hiibel The right of the people to be free from compulsion to answer questions shall not be infringed except according to subpoena.

    Marron Warrants for search and seizure must list the places that may be searched and the persons or things that may be seized, and those places and things must be limited to probable cause based on oath or affirmation. The scope of searches and seizures made without warrants shall be similarly limited according to the probable cause justifying the search or seizure. If, during a lawful search, a person discovers things outside of the scope of the lawful search, then the exclusionary rule applies.

    Search And Seizure -- Challenges
    The right of the people in a private space to be notified of a search, and to be told the reasons for a search, and to challenge the search, prior to entry of the searchers, shall not be infringed. No-knock raid warrants shall be unlawful without exception. No-knock raids shall not be justified by the prevention of destruction of evidence.
    The right of the people to be told the reasons for a detention or arrest, and to challenge the detention or arrest, prior to the use of force, including the brandishing of weapons, shall not be infringed, unless the arrest is by special warrant with probable cause of violent resistance to arrest based on oath or affirmation, or unless the arrest is made without warrant with probable cause of an outstanding felony offense. In all cases, persons who are detained or arrested must be told the reasons for the detention or arrest, and must be able to give challenges to the detention or arrest, as soon as possible, and at the scene of the detention or arrest.

    Search And Seizure -- Raising The Bar Border checkpoints outside of actual border crossings (Martinez-Fuerte), gang injunctions, roadside sobriety checkpoints, and , shall be unlawful, and and similar infringements of the rights of the people shall be unlawful.

    Special Weapons Rights Standing armies have always been the enemy of the people. Therefore, except as expressly permitted by warrant, police shall not be granted any special rights concerning the carrying, brandishing, or use of weapons and other arms.

    Terry To protect the right of the people to keep and bear arms, and to protect the life, liberty, and dignity of the people, no person shall be detained on the mere possibility that they might be lawfully exercising their constitutional right to carry concealed arms, and no person shall have their person or effects searched for concealed arms as part of any lawful detention short of full custodial arrest.

    Use Of Force Guidelines All police organizations must maintain and publish guidelines on the use of force and rules of escalation of force based on principles and based on extensive detailed examples. Said guidelines shall restrict the use of force and escalation of force to as little as reasonably possible. Violations of said guidelines shall constitute a presumption of unlawfulness in court.

    Warrant In Hand When a search or seizure would require a warrant, the executor must obtain the warrant before using it, and the warrant must be “in hand” during its execution, or else the protections of the warrant are voided.

    Warrant In Uniform During the execution of warrants, executors must wear the standard and official officer’s uniforms, and each person’s uniform must have their personal name on the front and back in large unobstructed text, or else the protections of the warrant are voided.

    Warrant Raison d’Etre Persons directly involved with the investigation of criminal offenses are likely to have their passions inflamed and their judgments clouded, and therefore their discretionary powers for search and seizure shall be as limited as much as reasonably possible, with as much discretion as possible instead invested in judges and magistrates via the issuing of warrants.

    Here’s a few more “ridiculous” ideas that are firmly based in historical practice.

    Private Prosecutors The right of the victim and the close family and friends of the victim to have the first opportunity to seek indictment from a grand jury, and choose themselves or any counsel of their choice as prosecutor, shall not be infringed, and these private prosecutors shall have the same powers and privileges as government prosecutors.

    Resistance, Right To The rights of the people to resist unlawful searches and seizures, and other unlawful use of force, shall not be infringed.

    Here’s a few more cases that don’t directly relate to police conduct, but instead to the criminal justice system at large.

    Absolute Right To Bankruptcy: The absolute right of the people to seek total bankruptcy at any time, for any reason, as often as wanted, shall not be infringed, and total bankruptcy shall completely forgive all debts, public and private, including debt owed to federal and States, including tax debt and criminal fees and fines, with no lingering money obligations, property obligations, labor obligations, nor any other similar lingering obligations of any kind, at the maximum cost of the full loss of all current assets. However, bankruptcy does not forgive future debts that may be accrued, and nor does it forgive penalties that may be imposed for other reasons, such as restraining orders, probation and prison for unlawfully interfering with lawful debt collection, and so forth.

    Debtor Protection The rights and privileges of the people, including all discretionary action in civil and criminal courts and all other government officials, shall not be infringed on the mere basis of outstanding debt, public or private, including debt owed to any governmental agency, including tax debt, criminal fees and fines, parole fees, and so forth, but reasonable debt collection practices are allowed, and wrongful interference with reasonable debt collection practices is not protected.

    Fox v. State Of Ohio Double jeopardy protections shall forbid two prosecutions for the same offense by federal and State jurisdiction, or by two or more State jurisdictions.

    Plea Bargaining Plea bargaining shall be unlawful except in exchange for testimony from participants of criminal conspiracies, and all plea bargains must be approved by a grand jury.

    Prompt Arraignment An arraignment plus bail hearing before a competent judge or magistrate must be held as soon as possible after any arrest without any delay to aid the prosecution. Furthermore, if this hearing cannot be held within 8 hours, then the accused shall be released on their own recognizance pending trial -- holidays and weekends shall not be exempt.

    Warrant Hearsay To provide for an effective remedy against the wrongful issuing of warrants, all sworn or affirmed testimony that forms the basis of issuing warrants shall be recorded for later investigation, and hearsay shall form no part of the basis of the issuing of warrants.

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