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Last week, in two unsigned opinions, the Supreme Court showed its contempt for police reform. The two cases, which are part of the so-called shadow court dossier, were decided without a public briefing or argument. Taken together, they create an almost insurmountable barrier to holding police officers accountable for violating people’s constitutional rights.

With this latest ruling, the Supreme Court has abdicated its responsibility to regulate police behavior. Now lawmakers must step in and do what judges will not do.

The question in both cases was whether officers should be granted qualified immunity in cases where they used excessive force. Qualified immunity protects officers from having to pay damages when they violate the rights of individuals. Under the Supreme Court’s doctrine of qualified immunity, it is not enough to show that an officer acted unlawfully to lose this protection. A court must also find that the right violated by the officer was “clearly established” at the time. In both cases, the court ruled in favor of the police.

Even before last week, “clearly established” was a high bar for victims to overcome as it required that there be a preliminary case, either from the Supreme Court or from the appellate court of the same jurisdiction, involving a set of almost identical facts. Courts have consistently pointed to minor factual differences – for example, whether the victim was lying down or sitting upright – in ruling that a previous case was too different to warn officers they were acting unconstitutionally.

But after last week’s decisions, with no dissent noted, the bar for relief can be so high that hardly anyone can cross it. The unsigned opinion in Rivas-Vellegas v. Cortesluna suggests law enforcement officers will get a free ride to the Supreme Court himself weighs to say which specific conduct is prohibited.

Not once but twice have the judges written that, “even assuming” that a case in an appeals court “could clearly establish the law” for civil rights violations, the court did not identify such a case. . The clear implication is that an appeals court case on one point may no longer be sufficient to hold officers accountable. To convey their position, the judges concluded: “Neither Cortesluna nor the Court of Appeal identified a Supreme Court case involving facts such as those at issue here.

This is a stark departure from the widely held assumption and practice that a similar case in a lower court would be enough to alert officers that they were acting illegally.

It’s pretty crazy to think that policing can be regulated through court rulings that studies have shown police officers rarely read or learn anyway. But it’s even crazier to think that the whole realm of unconstitutional policing can be defined by the small number of cases the Supreme Court decides each year – especially if, as the Court continues to insist, the victims must report an almost identical case before the police can be held responsible. (At least before Monday, plaintiffs had dozens if not hundreds of lower court decisions to rely on.) The obvious conclusion is that, for the most part, police conduct simply will not be regulated by the law enforcement officials. courts.

Lest it look like we are crying wolf, the judges themselves upheld that view in the other qualified immunity ruling he announced last week. “As we explained,” they wrote, “qualified immunity protects“ all except those who are manifestly incompetent or those who knowingly break the law. ”Firearms? The bar for policing solid really attached to those who are not “manifestly incompetent” or who “knowingly break the law”?

What the judges seem to fail to recognize is that policing is a multifaceted and complex business that requires clear rules and close oversight to regulate – the kind of oversight that has been discouraged by the genre. of disorder evident in the decisions of the past week. For decades, state laws and agent use of force enforcement policies simply reiterated the rule announced in 1989 in Graham v. Connor, in which a unanimous Supreme Court ruled that force should only be “objectively reasonable” in the eyes of an average citizen. policeman at the time it is used.

But rulings like Graham provide no guidance on a host of critical issues, including what actions officers should take to try to defuse potentially violent encounters or what information officers should include in use of force reports. to facilitate careful monitoring and review.

For too long, society has attempted to regulate and fix police services by asking courts to apply vague standards after the fact. We would never think of regulating nuclear energy or workplace safety simply by looking at fatal accidents after they have occurred to determine whether companies have acted “reasonably”. Instead, we have detailed laws that say precisely what can and cannot be done. State legislatures should take the same approach with the police by setting clear rules in advance.

A small number of states, including Colorado and Washington, have adopted comprehensive reform measures, including stricter rules on when officers can use force, strong data collection and reporting requirements and stronger mechanisms to hold officers accountable for wrongdoing. Virginia has taken steps to limit the use of low-level traffic stops as an excuse to stop and search drivers in hopes of finding guns or drugs.

Unfortunately, state law enforcement laws are still too few, too fragmentary, and often come too late. After the murder of George Floyd, many states banned strangulations. After Breonna Taylor’s death, some arrest warrants banned. But we’re not going to fix the police with an approach that just rules out the last horrible thing that happened. What we need are comprehensive laws, like the ones we drafted at the Policing Project at New York University School of Law, that set out clear rules about what agents can and cannot do and put in place. mechanisms to ensure that these rules are followed.

The cases of the past week have slipped quietly. The facts were not glaring enough to gather protests, and because the court dealt with them on his shadow case, there was little media attention.

But make no mistake about it. The judges thumbed their noses at black and brown communities who disproportionately pay the price for unconstitutional police misconduct, as well as the many voices from across the ideological spectrum who finally understand that the issue of policing requires thoughtful and careful attention. Lawmakers must now do the work the courts will not do.

Barry Friedman is a professor at New York University School of Law, where he is co-founder and faculty director of the Policing Project. Maria Ponomarenko is a professor at the University of Minnesota School of Law and co-founder and legal counsel for the NYU Police Project.


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