Shoot First, Think Later, Pay Never: How Qualified Immunity Perpetuates the Modern-Day Lynching of Black Americans and Why Abolition is the Answer

Authors

Abigail Sloan

Abstract

(Excerpt)

The purpose of this Note is to analogize today’s police killings of Black Americans to lynchings, and to examine how qualified immunity is one of many mechanisms governments and police departments use to evade accountability. The word “lynching” itself evokes an emotional and disturbing image of horror from the reconstruction-era South, with images of terroristic, racist violence which can be uncomfortable and traumatizing to confront. However, in using the word “lynching,” I intentionally and respectfully draw upon the similarities between historical lynchings and the police killings of Black Americans today, particularly in tracking the evolution of brutal violence to sustain and uphold white supremacy. While the word “lynching” has been used by former president Donald Trump to describe his impeachment, by Supreme Court Justice Clarence Thomas to describe the sexual harassment allegations from Anita Hill, and by Bill Cosby and R. Kelly’s publicists to describe the response to their sexual assault allegations, “only a lynching is a lynching.” Trivializing such violent acts “reduces the humanity of those who truly suffered at the hands of lynch mobs.” The intergenerational trauma felt by the Black community should not be minimized, and a word that invokes such a painful history should only be used with respect and understanding.

Modern-day police killings of Black Americans are analogous to historical lynchings and the qualified immunity doctrine perpetuates a culture of impunity, allowing police officers to get away with murder—therefore, the doctrine must be abolished. Part I of this Note discusses the qualified immunity doctrine, including the rationale for its creation, its evolution, the “clearly established” standard, and the heightened level of scrutiny that makes it too difficult for to sue police officers for misconduct. Part I also discusses the history of lynchings, focusing on the culture of violence against Black Americans, predominately in the South. The Note then traces the transformation of lynching from its historical origins to modern day.

Part II analyzes how abolishing the qualified immunity doctrine will hold police officers accountable as a solution to the impunity that runs rampant in police departments. It analogizes that the end of traditional lynching was brought about in part by anti-lynching activism which led to a greater degree of accountability for perpetrators, and therefore that holding police officers legally accountable will help bring justice to victims of police misconduct and violence. While historical lynchings decreased in large part by social change across the country, the lack of legal accountability allowed historical lynchings to persist for as long as they did, and therefore social activism was significant in bringing an end to historical lynchings. Further, because lynchings have not been eradicated, but rather have only changed form, legal accountability is necessary to bring an end to lynchings.