everyone who will simply miss her smile. We carry insurance, but
not criminal or civil immunity.
In the US, the men and women of the police have a form of civil
immunity. Their victims do not. Nearly 50 years ago, the Supreme
Court decided that this doctrine applies to shield police officers
from personal liability for acts performed when they are doing their
government jobs. Called “qualified immunity,” its effect is to make
lawsuits against police officers too often an exercise in futility. A
plaintiff must prove two stringent requirements under this doctrine
in order to overcome a police officer’s immunity. As I write this, the
court is deciding whether again to take up the question of how it
treats and defines “qualified immunity.”
To successfully pursue a claim against a police officer for excessive
force (i.e., to overcome the qualified immunity defense) a plaintiff
must demonstrate that: (a) the police officer violated a “clearly established”
federal law or constitutional right (e.g., a violation of the
Fourth Amendment); and, (b) that a reasonable person would have
known or been aware of the existence of that federal right. The latter
requirement turns on whether a reasonable person, in the position
of the police officer, would have known his action violated a clearly
established federal law.
In case after case since 1985, what this has boiled down to is
that the plaintiff must have experienced the exact same injury as
another plaintiff. In a study of the appellate courts’ decisions on
this issue from 2007-2017, reported by a Reuters team in May, their
rulings favored the police 57% of the time. If no case presented a
very similar situation, then the established law guideline could not
be met, and no opportunity for justice through the civil route could
be gained. Despite the criminal charges against the officers involved
in the death of Mr. George Floyd, if there is no “knee on neck” case
to be found, no civil case is likely to succeed.
DOCTORS' LOUNGE
The House has already written a new measure that addresses
this. It’s too soon to know if it will get a hearing in the Senate. One
idea that might gain traction, coupled with a lot of training, is to
require a series of graduated liability insurance premiums for individual
officers, over and above what their departments provide.
Officers would all start out with insurance that’s paid for by their
departments. Charges against them for domestic violence and for
use of excessive force, if a disciplinary investigation shows evidence
of wrongdoing, would trigger higher premiums. The enforcer here
is that the difference between the department-paid and the individual-paid
would be hefty and would be automatically deducted from
paychecks. Community police review boards would follow up on
every complaint of excessive force and review all possible evidence.
Even if a case never went to court, the extra cost to the officer would
be levied by the police review board. Repeated offenses would raise
the premium each time.
It makes sense to me that just as doctors hold others’ lives in
our hands, so do police officers. If it helps us to have that other
voice, the insistent “Not Getting Sued” one, it might help them to
think “Stop! Wait!” before beating up innocent people, as we have
all watched with horror, over and over, since Mr. Floyd was killed.
Police officers risk their lives to serve us, day and night. We need
them and want them. But we need to find a way to banish officers
who are no longer protecting, and what they are serving is no longer
the common good.
Dr. Barry is an internist and Associate Professor of Medicine (Gratis Faculty) at the
University of Louisville School of Medicine, currently taking a six month sabbatical.
BLACK LIVES MATTER AUTHOR Nicholas Chen
I’ve been thinking a lot about the atrocities
this country has witnessed recently.
I know writing some thoughts and being
vocal on social media doesn’t mean
much; everything I say comes from a place
of privilege and risks drowning out Black
voices. But staying silent is far worse and
can only contribute to Asian American
complicity in racism.
The problem we face today is certainly about George Floyd,
Breonna Taylor and Ahmaud Arbery, but it extends much deeper
than that. Their deaths are tragic reminders that we live in a violent,
prejudiced society that ceaselessly mistreats and kills Black people.
We embrace and celebrate the ideals of life, liberty and happiness,
yet enforce barriers that undermine Black communities from fulfillment
of these founding principles of a country their ancestors built.
Racism is not some artifact of the past, not when there are White
people who have stoked the flames of their ignorance and hatred
to such a degree that they feel it’s within their power to carry out a
modern-day lynching. 1
Racism is public; so ingrained that we have seen it weaponized
in everyday life.
Racism explains why even the safety of one’s own home can be
so easily violated by an incompetent police action. 3
Racism underlies the criticism of protests and demonstrations,
urging less radical means, and is why people take issue with Colin
Kaepernick’s silent protesting of police brutality. 4
Racism explains why our President praises White protestors
who, upset with a pandemic lockdown, storm Capitol buildings with
assault rifles, yet in the same breath he incites violence against Black
protestors who are peacefully crying out against assaults on their
very lives. How is it that the armed protestors are met with calm,
respectful, non-violent police? How is it that the White perpetrators
of gun crimes are able to be brought into police custody alive?
(continued on page 30)
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