Editor’s Note: Samuel Bagenstos is a senior fellow at The PuLSE Institute, where he focuses on civil rights, health and housing law. He is currently the Frank G. Millard Professor of Law at the University of Michigan Law School and a practicing civil rights lawyer. During the Obama Administration, Bagenstos served as Principal Deputy Assistant Attorney General for Civil Rights at the United States Department of Justice. He graduated from Harvard University Law School and clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg. For submission inquiries contact Bankole Thompson, the editor-in-chief of The PuLSE Institute at firstname.lastname@example.org.
By Samuel Bagenstos
The killing of George Floyd by a white Minneapolis police officer, and the excessive force used by law enforcement agencies around the country in responding to the subsequent protests, have their roots in 400 years of slavery, injustice, segregation, and discrimination—given an extra nudge by President Donald Trump’s vocal advocacy of harsh policing tactics. But one of the key contributors to police violence is less often discussed: the role of judges—appointed by both Republican and Democratic presidents—in removing consequences for law enforcement misconduct.
On paper, our Constitution guarantees to all persons equal protection and due process of law. These requirements have long been understood to bar the discriminatory or excessive use of force by police. And yet we face a seemingly endless stream of unjustified police killings, not to mention ubiquitous acts of more quotidian application of excessive force. As we have recently seen nationwide in the indiscriminate use of tear gas on peaceful protesters, in practice we seem to allow law enforcement officers to use tactics on American citizens at home that would be forbidden against foreign enemies on a battlefield.
Although abusive police practices affect people of every race and class, the effects do not fall equally on all groups. Far from it. A recent review in the Proceedings of the National Academy of Sciences estimated that “about 1 in every 1,000 black men can expect to be killed by police.” The authors of the review found that “Black women and men and American Indian and Alaska Native women and men are significantly more likely than white women and men to be killed by police,” and that “Latino men are also more likely to be killed by police than are white men.”
It’s an old story: Our Constitution makes parchment promises, but our Nation does not keep those promises. In our system, we count on courts to step in when agents of the state fail to respect constitutional rights. But in the area of police misconduct, our courts have abdicated that role.
In an essay published in the Michigan Law Review four years ago, I described how the courts pulled back. Even if the police violate your constitutional rights, you are unlikely to be able to obtain redress, because judges have closed the courthouse doors. Under a rule lawyers call “qualified immunity,” a police officer cannot be held liable unless the officer didn’t just violate the Constitution but did so in a way that would have been clearly unconstitutional to any reasonable officer in their situation—generally because the courts had previously found a violation on similar facts. But because no two fact settings are ever precisely the same, officers can virtually always argue that it wasn’t clear that this use of force was unconstitutional. And when lower courts allow excessive-force cases to go to trial, appellate courts and even the U.S. Supreme Court will often quickly step in to overrule them and let the officer off the hook.
Quite simply, the victims of unconstitutional policing are too often unable to hold accountable those who violated their rights. And there is often no way for individuals—or even groups of individuals—to go to court in advance to prevent law enforcement misconduct. We know of several interventions that can prevent constitutional violations: strict use-of-force policies; early-warning systems to identify officers who have a high number of complaints filed against them; and creating a culture of bystander intervention so that officers step in to prevent their colleagues from straying from appropriate conduct.
When police departments are not implementing these interventions, however, the individuals at risk of unconstitutional policing cannot go to court to force them to do so—and that is true even if they have experienced a violation of their rights in the past. Judges will say, following Supreme Court precedent, that the individuals bringing suit must show that they, personally, will be subject to the same violation in the future—an incredibly difficult hurdle to surmount.
These rules, which have closed the courthouse doors to people who experience police violence, were the work not just of Republican-appointed judges but also of Democratic-appointed ones. When the Supreme Court steps in to shield a law enforcement officer from facing a lawsuit—as it does multiple times each year—its decision is typically lopsided, with many if not all of the supposedly liberal justices joining with the conservatives. The “tough on crime” politics of the 1980s and 1990s was a bipartisan endeavor, and its lasting legacy on the bench has kept people from enforcing their constitutional rights.
And when individuals cannot enforce their own constitutional rights, they must rely on the government to do it for them. Thanks to the leadership of, among others, the late Rep. John Conyers, Congress in 1994 adopted a law empowering the United States Department of Justice to sue municipalities that had exhibited a “pattern or practice” of police misconduct. The Clinton Administration took some initial steps to enforce this law—most notably obtaining significant reforms of the Los Angeles Police Department following the 1991 Rodney King beating—but it was the administration of President Obama that really made these cases a priority. (I had the privilege of serving in a senior leadership position in the Civil Rights Division of the Department of Justice during the Obama Administration).
The Obama Administration’s efforts prompted far-reaching reforms in police departments in New Orleans, Seattle, the Commonwealth of Puerto Rico, and many other jurisdictions—notably including Ferguson, Missouri, and Baltimore. But the Trump Administration rolled that progress back. President Trump’s first Attorney General, Jeff Sessions, strictly limited the Department of Justice’s use of “consent decrees”—a policy that, Mother Jones magazine notes, “all but end(ed) the department’s oversight of police departments.” Sessions’ successor, Attorney General William Barr, has also opposed efforts to regulate law enforcement practices, going so far as to warn, in a highly publicized speech, that communities that fail to offer “the respect and support that law enforcement deserves” could “find themselves without the police protection they need.” The message could not be clearer: Don’t expect the federal government to protect you against police violence.
Unfortunately, with no ability to go to court themselves to force change on police departments, individuals and communities are left at the mercy of a fickle federal government. Until we have an administration that takes the constitutional guarantees of equal protection and due process seriously—and one that is not gripped by outdated “tough on crime” rhetoric, but instead appoints judges who are unafraid to protect those whose rights are violated—we can sadly expect to see more George Floyds in our future.