Qualified Immunity Is Helping Police Get Away With Murder—And So Are Prosecutors | Opinion

I vividly remember the first time I saw Maya, whose name is changed here to protect her privacy, with her two black eyes at the hands of the San Antonio Police Department. One eye was so beaten, it could no longer open. Responding to a 911 call from a bar that had overserved her, three male police officers alleged Maya had become violent and unruly. During the arrest, they cuffed her hands, shackled her legs and delivered multiple bone-breaking blows to her head while straddling her chest.

The officers claimed the violence was necessary "for everyone's safety." In 2007, there were no body cameras to capture the beating. It was her word against theirs. The details are horrifying, and the only reason why we even know them is because Maya is a white woman. Had she been an African American, like me, things likely would have been even worse.

At the time, I was a young prosecutor at the Bexar County District Attorney's Office in Texas. Police brutality was a regular occurrence. Years later, sadly, it is no better.

Given both the frequency and normalized culture of violence in the police force, Maya's case didn't shock me. Ultimately, none of the officers were charged, and I was left thinking: If the police will do this to a white woman, what will they do to someone who looks like me?

The cases of George Floyd, Breonna Taylor, Tony McDade and so many other others we do not know provide a heart-wrenching answer to that question. And in the case of Floyd, we can watch the answer in a viral video.

Now that I've left my job as a prosecutor to become a civil rights lawyer, I see even more clearly how and why police have exploited legal doctrine and the system to shield themselves from any accountability for brutalizing their own neighbors and communities.

The police hide behind a nebulous doctrine that protects them from prosecution so long as their violence does not violate "clearly established law." Qualified immunity—which is a judicial doctrine, not a law, given that it was invented by the Supreme Court—holds that police can't be sued for excessive force if victims can't find a nearly identical case to theirs that previously resulted in prosecution.

Unsure of what this actually means? The ambiguity is the point.

In light of nationwide protests demanding justice for decades, if not centuries, of systemic and interpersonal racism, activists and political leaders are finally drawing attention to this harmful and opaque doctrine that continues to rob victims and their families of justice.

More than 400 civil rights organizations recently urged congressional leaders to end qualified immunity protections, given that it "has been interpreted by courts so broadly that it allows officers to engage in unconstitutional acts with impunity." One week later, congressional Democrats introduced a bill that would eliminate the doctrine.

This is a significant step forward, but it's only one piece of a complex, multifaceted puzzle that enables and defends police brutality. A comprehensive review and reform of all law enforcement practices, policies and patterns is imperative to reducing—and eventually eliminating—police violence.

The universal police code is "comply now, complain later." If an arrested person does not obey an officer's command, regardless of whether the command is legal or justified, police often feel entitled to respond violently. The darker a person's skin, the more violently they typically respond. And to compound the problem, officers then get leeway to charge arrestees whom they assault with resisting arrest.

I witnessed how prosecutors, who routinely work with the police and often have personal relationships with them, are incentivized to aggressively pursue cases where police officers are complainants. Successful criminal prosecutions nullify civil lawsuits against the police, which is what happened in Maya's case.

Maya sued the officers for excessive force, but her criminal case went to trial first. Maya was convicted of resisting arrest, and then the officers argued that if Maya was allowed to prevail on her excessive force claim, she would invalidate that conviction. The court agreed and dismissed her lawsuit.

If police assault someone, they often charge the person with resisting arrest, assaulting them or both to justify their conduct. It almost always works—unless the officers are caught on camera.

George Floyd protest and funeral
A man kneels at a protest after the killing of George Floyd, on June 4 in Harlem, New York. Joana Toro/VIEWpressG/Getty

Working together over decades of partnership, prosecutors and police have also learned how to discredit complainants and manipulate the grand jury process. Unlike regular trial juries, grand juries meet with prosecutors for several weeks at a time. Jurors grow to trust prosecutors' recommendations, which police capitalize on by having friendly officers also spend time with grand juries. Since grand jury proceedings are secret, prosecutors get to tell the public, "We are seeking an indictment against Officer John Doe," while whispering to the grand jury, "Do not indict him."

Having been a prosecutor for nearly a decade, I saw the consequences of these policies and practices every day. Black and brown people are regularly and disproportionately subjected to indiscriminate police brutality. Meanwhile, the police themselves get to walk free. And it took the proliferation of smartphones and viral videos to force America to reckon with this injustice.

As the country finally begins to wake up to the legacy of racial injustice and police violence, there is real, tangible hope for a new dawn—one where police no longer can abuse with impunity and where communities can feel safe among the people who are meant to protect them. But for that dawn to come, qualified immunity must end and prosecutors must be held accountable.

David Henderson is a civil rights attorney and former prosecutor who currently lives in Dallas, Texas. His Twitter handle is @OakCliffLawyer.

The views expressed in this article are the author's own.