We Must End ‘Qualified Immunity’ for Police. It Might Save the Next George Floyd
On the night of 30 May last year, I was standing at the mayor of Atlanta’s podium, wondering what I might say to keep my home town from burning itself to the ground before the sun came up in the morning.
The fury erupting in the streets of Atlanta in George Floyd’s name that night was the cry of generations, and it was a righteous cry, and it was justified. Standing there before those TV cameras, I thought of Mr Floyd in his last moments on Earth, his neck crushed under the knee of a cop who once took an oath to serve and protect his community, his partner standing watch while Mr Floyd cried out for his mother in heaven and died.
I thought of the next generation of Black boys and girls across America who watched that horrible lynching on their phones and I wondered how many of them were no longer surprised by what they saw. I wondered how many would go on themselves to die at the hands of a racist law enforcement system not far removed from slave patrols of the antebellum south or the decades of Jim Crow oppression that haunted my people afterward. I felt the old rage rising in my own heart and burning in my own eyes, too.
Looking back on that night, I know that a part of me wanted to watch the world burn, as well. A part of me wondered if it wouldn’t be better than the alternative, of living in a world like this one, where every day it seems I am waking up to watch another Black person die.
At the same time, I knew burning ourselves down was not the way. Atlanta is the homeland. Atlanta is to the Black diaspora, in my mind, every bit as significant as Israel is to the Jewish community, as Brazil is to the pan-African community. One hundred and twenty years of economic opportunity for Black Americans like my grandmother, who moved here in 1952, or my grandfather, who arrived 10 years earlier. Fifty years of Black mayoral leadership. A city that is thriving, even if it ain’t perfect. A city with the third-most Fortune 500 companies in the nation. A city home to the “Atlanta Conference of Negro Problems”, hosted by Booker T Washington and WEB Du Bois each year from 1896 to 1914. A city where more than 50 restaurants are now owned by Black people, and in particular Black women. Atlanta could not fall, not like this, not right now. We had to fortify.
I was duty-bound to speak directly to Atlanta at that moment – to remind everyone, including myself, that we must remain a fortress in a sea of chaos. We do not have to destroy our homes, our neighborhoods, our businesses. We do not have to give in to despair the way they want us to. We do not have to live our lives in grief and anguish that spans the days between one martyred hashtag and the next. We do not have to hang our hopes on some damn prosecutor to “do the right thing” after they stood by and let the wrong thing happen, again and again.
So I swallowed down my anger, and I opened my remarks by laying down the truest line I knew: “I didn’t want to come,” I said. “And I don’t want to be here.”
First, before we talk about qualified immunity, let me say something about cops that needs to be said. I am the proud son of a former officer of the Atlanta police department. Two of my cousins are police officers right now. Based on what I experienced growing up here in Atlanta, I believe that there are cops who are not inherently bad or evil people, who want to keep our communities safe and who work hard to do so. One example right off the bat is Officer Tommy Norman out in North Little Rock, Arkansas, a guy I’ve thrown some shine to before on my podcast. Maybe you’ve seen Tommy on his social media accounts – if not, look him up sometime. Tommy doesn’t live in his patrol car, looking to hit some arrest quota by the end of the month. He knows the people on his beat, and they know him back. North Little Rock ain’t an easy place to be a cop, but even still, people in the community don’t fear for their lives the second they see Tommy’s squad car roll up. That’s a testament to him. That’s because he does it right.
With that said, even good cops like Tommy Norman still operate inside a larger system that is itself overly militarized, harshly punitive (particularly against Black Americans), and absent of any real legal accountability – as we continue to see, time and time again, when cops kill people with impunity. As a result, bad cops are allowed to make good cops like Tommy’s jobs even harder, because of the public trust that has been broken. And there will be no fixing that public trust – or the law enforcement system as a whole – without first ending the legal doctrine known as qualified immunity.
Qualified immunity is the rule that protects government employees from being taken to task for assaults on your constitutional rights – in this instance, your eighth amendment right against cruel and unusual punishment at the hands of the state – so long as those employees did not violate “clearly established” law. Of all the predatory elements of American policing (and there are many, from legal chokeholds to monthly arrest quotas to the NYPD’s infamous stop-and-frisk policy) the qualified immunity doctrine is perhaps the single linchpin that holds the entire machine together. Without ending qualified immunity, there’s no way to hold bad cops accountable for their violent crimes against the American people. The system will perpetuate itself largely undisturbed, the violence will rage on and on, and Black communities all over the country will keep on living in fear of the very people sworn allegedly to protect them.
We have to be honest with ourselves about how law enforcement has taken hold in American society. What began as a slave-catcher’s role eventually evolved into, after the 13th amendment technically abolished chattel slavery, an agent of legally imposed Jim Crow oppression on Black Americans. As the decades went on and various important civil rights victories were achieved, police departments got more creative. They began the practice we see today of hiring people who look like oppressed groups, but are still forced to do the bidding of a prison-industrial system that perpetuates those groups’ oppression each and every day.
What does that system look like now? It’s a system where a Black person is five times more likely to be stopped by police without just cause than a white person. It’s a system where between 900 and 1,100 people are shot and killed by police each year – with much higher proportions in the Black community, when accounting for total population. The United States is not first place in many categories today, but our law enforcement system does lead the developed world in terms of body count. In fact, we blow other nations out of the water. It ain’t even a competition. How many people do cops kill annually in Canada? Thirty-six. In France? Twenty-six. In Australia? Four. In Denmark, Iceland and Switzerland combined? Zero.
Not surprisingly, it turns out that when a nation equips its police departments with the gear, weaponry and mindset of occupying armies, those departments come to see their communities as enemy combatants, and the streets of America as a war zone. The doctrine of qualified immunity for police officers more or less guarantees this will continue to be the case, no matter what other reforms we try to pass at the state or federal level.
As the calls to prosecute Officer Derek Chauvin grew louder in the days following Mr Floyd’s death in Minneapolis – calls which I agreed with – I couldn’t help but think of the futility of the effort in the end. Prosecution was not going to bring that man back from the dead. Prosecution is not going to bring Breonna Taylor back, or Tamir Rice or Renisha McBride or Eric Garner or Rekia Boyd or Philando Castile or Natasha McKenna or Michael Brown or anyone. Prosecution is a hollow victory for communities racked by generations of torment and rage. Prosecution does not excuse the system that created the murderer and their victim, the master and his slave, the occupier and the occupied. Anybody can do the right thing after the wrong thing has happened. Anybody can punish individuals after the fact. But what does that do for the next victim? What does that do for the next Black family in America who will lose their child or father or mother to martyrdom and does not know it yet? Legal actions that don’t change the mechanics of the system are empty concessions to disguise what those mechanics are all about. Policing in America today is born out of the nucleus of authoritarianism, the mindset of: “I can kill you, no matter the reason, and nothing will happen to me.” As organizers and activists, we have got to go further than simply seeking punishment for individual officers after they have ended a life. We have to change the culture of policing itself, to save the next life. We have to end qualified immunity.
The most important thing I have learned through my life and career is that evil does not care who it collaborates with. Evil cooperates better than good. Evil will collaborate with somebody good so long as it will meet the ends of evil. What this means is that good people, people married to principle and morals and a vision for a better world, have to start looking past our differences. If not, we are always going to always lose against evil.
Sometimes the fight against evil feels heavy and hopeless. But it’s not hopeless. Plot, plan, strategize, organize and mobilize. You start by yourself. You plot out what you want to see in the world, you maybe do a little planning by yourself. But then you begin to strategize with the others around you – in your building, on your street, in your office. And then you organize with others. And then, finally, you mobilize together. In that struggle, we discover solidarity with other human beings – and that is something that no evil can take from us.
It is not as lonely when you understand you ain’t alone.
Michael Render, also known as Killer Mike, is a rapper and activist
This essay is adapted from the preface to Above the Law: How ‘Qualified Immunity’ Protects Violent Police by Ben Cohen, co-founder of Ben & Jerry’s, and forthcoming from OR Books