By Sean Yoes
AFRO Baltimore Editor
“Qualified immunity,” is the modern day legal doctrine that has shielded law enforcement officers and other government officials for decades against lawsuits over their conduct. According to National Public Radio’s Nina Totenberg, the Supreme Court this week declined to hear cases seeking to reexamine qualified immunity in the wake of the murder of George Floyd in Minneapolis and the homicide of Rayshard Brooks in Atlanta at the hands of police.
The doctrine of qualified immunity may have been birthed out of the fear and loathing spawned by the Baltimore Police strike in the summer of 1974.
In July of 1974, many members of the Baltimore Police Department (BPD) engaged in a series of escalating work actions in an effort to get more money and change certain BPD policies. Officers handed out copious amounts of traffic tickets, including twice ticketing the mayoral limousine of then Mayor William Donald Schaeffer. Striking officers inundated the department with frivolous police reports and engaged in other “silly” activities while on duty.
But, the most serious action striking officers engaged in scared the hell out of the politicians and the people. During the night shift on July 11, officers literally parked their police cars in the middle of Baltimore streets, got out of them and walked off the job. During the strike, crime spiked, some stores were looted and fires were sparked around the city.
And in less than one week (July 11 to July 17), the strike was over. The police got some of what they wanted, including a very moderate pay raise. But, the striking officers and the union (AFSCME) leadership was treated very harshly by then Police Commissioner Donald Pomerleau; many officers were fired, others were fined heavily.
However, the action of police officers walking off the job during a night shift in the midst of a chaotic city had triggered waves of panic not just in Baltimore, but perhaps across the nation that was watching.
That same year, Maryland became the first state to enact the Law Enforcement Officers Bill of Rights (LEOBR), which gives broad protections for police. Maryland’s LEOBR is not just the first in the nation, but also the most extreme.
Maryland’s version of the law grants police special rights when they are investigated for misconduct and provides significant obstacles to conducting investigations of officers accused of wrongdoing. Maryland’s LEOBR also rejects transparency in the investigation process and civilian oversight. It also includes the very controversial 10-day period where superiors cannot even question officers after an incident of misconduct.
I’m no lawyer, but it seems like a fairly cogent nexus between the LEOBR and qualified immunity. For decades since the implementation of Maryland’s LEOBOR, other states and municipalities have enforced similar protections for law enforcement officers. And those protections have enabled many members of law enforcement to operate with impunity as they have brutalized and murdered tens, maybe hundreds of thousands of Black and Brown people over the decades.
Now, in the aftermath of Ahmaud Arbery, Breonna Taylor, George Floyd, Rayshard Brooks, Tamir Rice, Amadou Diallo, Sean Bell, Trayvon Martin, Eric Garner, Freddie Gray and countless others, the Supreme Court won’t even allow a hearing on qualified immunity.
And as the House and Senate debate over police reform, the possibility of amending qualified immunity for law enforcement is deemed a “poisoned pill” by many Republicans in the process of crafting legislation.
Ultimately, the resistance to even examining the doctrine of qualified immunity is indicative of a lack of seriousness on the part of American lawmakers to enact real and comprehensive law enforcement reform, even during this time of national reckoning 400 years in the making.
Sean Yoes is the AFRO’s Baltimore editor and the author of Baltimore After Freddie Gray: Real Stories From One of America’s Great Imperiled Cities.