Volume 68, Issue 2 Louisville Medicine | Page 31

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) JULY 2020 29