Jurisprudence

The Supreme Court Is to Blame for Racist Policing

A young person with a backpack on kneels with their hands up in front of a line of police officers in riot gear.
A demonstrator kneels while protesting the death of George Floyd at the hands of Minneapolis police in Washington on May 31, 2020. Samuel Corum/AFP via Getty Images

On a recent episode of Amicus, Dahlia Lithwick spoke with Erwin Chemerinsky, dean of Berkeley Law, about the Supreme Court’s latest rulings on police immunity and his new book, Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights. A portion of their conversation, which has been edited and condensed for clarity, has been transcribed below.

Dahlia Lithwick: The Supreme Court generously provided a little illumination for this discussion with a pair of unsigned opinions last Monday, which had the court siding with the police in not one but two cases in which plaintiffs claimed that officers had used excessive force, and the court overturned two separate lower court rulings that had allowed the officers to be sued for civil rights violations. Can you talk us through these pair of opinions and maybe through the lens of the much larger conversation you have in the book about this line of qualified immunity cases?

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Erwin Chemerinsky: My guess is that most of the audience is familiar with qualified immunity. But just a bit of background: Whenever any government official is sued for money damages, there’s always an immunity defense. Some government officials have absolute immunity and can’t be sued at all for certain tasks—judges for the judicial tasks, prosecutors for the prosecutorial tasks, have absolute immunity.

But government officials who don’t have absolute immunity always have qualified immunity. And the Supreme Court has said that qualified immunity means that a government officer is liable only if he or she violates clearly established law that every reasonable officer should know. It has to be a right established beyond debate. I do think it’s worth pausing saying this is all just judicially created law. There’s nothing in any statute, let alone the constitution, about this. Many on both the right and the left have criticized the Supreme Court’s qualified immunity jurisprudence. In reality, it’s close to absolute immunity, and that’s especially so in police excessive force cases.

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Both the rulings that you referred to were police excessive force cases. And I think together, they establish a really important point. The first of these is Rivas-Villegas v. Cortesluna. And it involves a situation where a woman and her two daughters where barricaded into a bedroom. Abusive boyfriend was there, apparently with a chainsaw to try to cut down the door, and one of the daughters called the police. The police come, they get in an altercation with the man, they shoot him with a couple of bean bags, and then they pin him down to the ground and do so with great force, causing injuries to him. And the question was: Was the action of the police pinning him in that way excessive force? The 9th Circuit said, under 9th Circuit precedent, it clearly was excessive force. The Supreme Court in its per curiam opinion—there’s no dissent—says that it’s reversing the 9th Circuit, and it stresses that there’s no case exactly on point in this situation, so the officers are protected by qualified immunity.

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The other case that came down is also a police abuse case. This is the City of Tahlequah, Oklahoma, v. Bond. It also is a tragic domestic dispute. A woman calls the police on her ex-husband, the police get in a conversation with him in a tool shed, he pulls a hammer off the wall, it appears that he might throw the hammer at the police. Even though they’re many feet away, the police shoot and kill him. The state sues for excessive force. And here it’s the United States Court of Appeals for the 10th Circuit that says that the case can go forward, let the jury decide if its excessive force. But the Supreme Court, again, once more in a unanimous per curiam opinion reverses, and once more the court stresses that there’s not a case on point. The Supreme Court says, and I quote: “Not one of the decisions relied on by the Court of Appeals comes close to establishing that the officer’s conduct was unlawful.” The court concludes in the last paragraph, “Neither the panel majority nor the respondent have identified a single precedent finding a Fourth Amendment violation under similar circumstances. The officer’s entitled qualified immunity.” What the Supreme Court is saying, and saying explicitly, is unless there’s a case with identical facts, the officers are protected by qualified immunity. And of course, rarely are you going to have identical facts, which then means that qualified immunity is still very protective of police officers.

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I know that this is rank speculation, but the thing I’ve been asked the most since these decisions came down is where are the dissents? Why are we not getting a passionate dissent from Justice Sotomayor? Why are we not getting an angry dissent from Justice Kagan?

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Just a year ago in Taylor v. Riojas, the Supreme Court, 7–1, said you don’t need a case on point, so long as the office had fair notice that the conduct was unconstitutional, no qualified immunity. Why doesn’t one of the liberal justices say that here? My guess is that the liberal justices are trying to figure out: When is it worth their writing dissenting opinions? Justice Sotomayor said a few weeks ago that people are going to be very disappointed by this term. She knows what’s on the docket. She knows what her colleagues are likely to do. And my guess is that the liberal justices decided these weren’t the cases to expend their political capital. These weren’t the cases to expend their time on dissents.

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So I guess this dovetails into the question that I would’ve led with otherwise, which is: Your book ends on this slightly depressing note. You say, “We must hope all this attention”—and you’re talking about the protests that happened in 2020—“will pressure all the branches of government at every level to take action to change policing in the United States, but the Supreme Court has become ever more conservative over the last half-century, especially in the last few years. The protests are unlikely to resonate with these justices.”

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And so I think we’re sitting here in this doom loop where horrible things happen. The nation reacts with horror—whether it’s Eric Garner or George Floyd. They take to the streets. They demand reform. And I think your point, both in that quote and in the book, is that the court is as much a driver of these police practices as police departments and local governments. And yet, somehow, they are left out of this conversation. We give them a pass. And we take to the streets and we’re angry, but the prime mover here gets off scot-free.

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The thesis of the book is that the Supreme Court is responsible for so many of the problems of policing in the United States and especially the racialized nature of policing in the United States. And the reality is at least among the six conservative justices, there’s no recognition of a problem of policing, no recognition of a problem of racialized policing in the United States. So in the book, I don’t let the court have a free pass. In fact, the reason I wrote the book was to say: We need to blame the Supreme Court for the problems of policing in the United States. But I also don’t think we can look to the Supreme Court for the solution, not in the near term. Given the six conservative justice in their age, I don’t see they’re changing their views, and I don’t see their being replaced. So my point in the last chapter is meant to be a hopeful one.

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There are places that we can go for reform other than the Supreme Court. Now I have to admit when I finished the manuscript in October of 2020, I was more hopeful than I am now a year later. Because the tragic death of George Floyd—the protest in all 50 states led me to believe that there was going to be legislative action. A good bill, not a perfect bill, passed the House of Representatives that would’ve changed many things, including qualified immunity. But it stalled in the Senate and because of the likely filibuster, it’s not going to pass.

Some local governments have adopted laws. California adopted a law a year ago that prohibits police from using the chokehold. California, this year, adopted laws that are quite good in terms of certain reforms of the police. A police officer, after certain disciplinary violations, now is decertified and can’t move someplace else in the state to become a police officer. Many cities adopted ordinances, prohibiting the use of the chokehold. I thought there’d be more legislative action. I worry now that it’s going to take the death of the next George Floyd, or Eric Garner, or Laquan McDonald—the next mobilization to push through reform. But I still think it’s possible.

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In your book, in every one of these cases, you tell us the backstory, but you also toggle back and forth to conversations you have with your students and how they react to these cases. And most chillingly for me, conversations you’ve had in your various students and interventions with police forces, who sometimes come to you and say, “Help us understand this.” And I wonder if you can help us understand some of those conversations. If, like me, you don’t want to believe that cops are just racist, what is the thing that you hear time and time and time again, when you’re talking to police chiefs and other officials who are explaining to you why we can’t get out of this doom loop?

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I’ll tell a couple of stories to answer your question. One is a little bit over 20 years ago, when the Rampart scandal came to light in Los Angeles, I was asked to do a study of the Los Angeles Police Department. And I recruited a wonderful group of civil rights lawyers to work with me. Over about six months, I interviewed about 100 police officers. And overall I was tremendously impressed by them. So many of them told me that the proudest day of their life was the day that they got their badge. And what I also found so disturbing was I learned a lot about the culture of the Los Angeles Police Department. So many officers told me that at the police academy, they were taught the law and then they were taught how policing was really done in the city of Los Angeles. Many of the officers told me that they knew that if they ever reported misconduct by another officer, the next time they were in the field in danger, no one would protect their backs. That they feared that they’d often be punished by the brass and retaliated against for exposing wrongdoing by other officers. And I became convinced that the key problem in Los Angeles wasn’t overt racism. Certainly there was a great deal of implicit bias, but the real problem was a culture. And it’s a culture that really exalted Dirty Harry and shunned Serpico.

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My other story is more recent. You’d remember a case in 2016, Utah v. Strieff. It involved, if the police illegally stopped somebody, but then find that there’s an outstanding warrant: Is the evidence gained admissible? And Justice Thomas’ writing for the court said that it is. Justice Sotomayor wrote one of her most important dissents talking about what it is like to be a person of color in the United States and the talks that have to be given to children about dealing with the police. About six months after that case, the inspector general of a major city police department came to my office with all of his staff. And he said, “There’s a tremendous increase in illegal stops by our police department.” So the police learned in Utah v. Strieff that an illegal stop doesn’t matter if you find an outstanding arrest warrant—then the evidence you get is admissible. And how do we deal with the problem of this tremendous increase in illegal stops? And it showed me if nothing else, the police learned very quickly what the Supreme Court says and what they can do and get away with.

I think the police very much want to follow the law. And if the law imposes greater restrictions, they’ll follow that. So if the city allows the chokehold, the police are going to use it. And if the city prohibits the chokehold, the police won’t use it. If the law allows the police to enter a residence at night without knocking and announcing, the police will do it. But if the law prohibits entering without knocking and announcing, the police won’t do it. The police generally are rule followers. Yes, of course, they are bad apples. And yes, they’re overtly racist police, but having talked to a lot of police over many years, I think the police do want to follow the law. And if we had better law, better law from ordinances and statutes and state Supreme Courts, in the U.S. Supreme Court, we would then have better policing.

To hear the entire discussion, listen below, or subscribe to the show on Apple Podcasts, OvercastSpotifyStitcherGoogle Play, or wherever you get your podcasts.

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