As the U.S. still faces a reckoning with centuries of systematic racism, it’s become clear to more companies that saying they “stand" with Black communities is not enough. The time has finally come to take on institutions that are preventing Black people and people of color from participating freely in American daily life without having to look over their shoulders. To that end, a group of more than 400 business leaders sent a letter to the U.S. Congress this week calling for the end of qualified immunity.
First conceptualized in 1967 and again defined in a 2009 U.S. Supreme Court decision, qualified immunity “…balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”
When it comes to litigation that involve accusations of excessive police force, plaintiffs have the burden to prove that any government official was in violation of “clearly established” law in order for them to receive any damages for harm. The problem is that a plaintiff only has a chance at winning a criminal case against a police officer if a prior court case found a similar official liable in a nearly identical situation, which in reality is often almost impossible.
In addition, one section of the federal government’s civil right statute says police officers can’t be held liable if they believed their conduct was legal, even if it turns out their actions were in fact in violation of the law.
The results, say critics of qualified immunity, are the constant stories we see in the news, dating farther back than the Rodney King trial in the early 1990s and extending to court cases involving the murders of Black people such as Eric Garner and Philando Castile.
As many Americans have sighed in frustration when watching news coverage of the demonstrations sparked by the murder of George Floyd, and excessive force in response to protests on the behalf of police from Buffalo, New York, to Los Angeles, businesses are now saying, "Enough is enough."
Brands that have signed on the letter to Congress include Ben & Jerry’s, Eileen Fisher and Seventh Generation. With the backing of the American Sustainable Business Council (ASBC), they are supporting the bipartisan Ending Qualified Immunity Act sponsored by Democratic Rep. Ayanna Pressley of Massachusetts and independent (and former Republican) Rep. Justin Amash.
“When police officers kill an unarmed man, when they beat a woman, or when they shoot a child, the people of this country must have a way to hold them accountable in a court of law,” write the letter’s signatories. “And officers must know that if they act in such a manner, there will be repercussions.”
The co-founder of Ben & Jerry’s was even more direct in his assessment of qualified immunity.
“Qualified immunity is a get out of jail free card that protects police officers from being held accountable,” Ben Cohen said in an emailed statement to TriplePundit. “It makes it so difficult to prosecute and convict a bad cop that legal experts describe the law as so favoring cops that its ‘heads I win, tails you lose.’”
The ASBC and Ben & Jerry’s co-founders say they are encouraging more business leaders to pen their names on this letter in the quest to pressure elected officials to put a stop to qualified immunity and cease what they say is the “state-sanctioned murder of Black people.”
Opponents of qualified immunity face an uphill fight. While some political leaders, including Colorado Gov. Jared Polis, have signed legislation ending qualified immunity and other tactics that critics say have led to police brutality, many members within the Republican caucus in the U.S. Senate don’t appear to be close to jumping on that bandwagon any time soon.
Image credit: Ryan Kosmides
Leon Kaye has written for TriplePundit since 2010, and became its Executive Editor in 2018. He's based in Fresno, CA, from where he happily explores California’s stellar Central Coast and the national parks in the Sierra Nevadas. He's worked an lived in South Korea, the United Arab Emirates and Uruguay, and has traveled to over 70 countries. He's an alum of the University of Maryland, Baltimore County and the University of Southern California.