Allow Me to Retort: A Black Guy’s Guide to the Constitution

by Elie Mystal

An officer who violates constitutional rights should be punished in some way, even if that violation doesn’t rise to the level of a criminal act. At the very least, the officer should be worried that he’ll be punished in some way. The people who defend qualified immunity are, once again, the people who claim to be worried that a cop will hesitate before taking action. But if the threat of financial punishment makes a cop think twice before violating the Constitution, I say good. Any tool available to make police think differently before violating the laws is a tool that should be put to use. Courts have turned qualified immunity into a license for cops to act on their racial prejudices with impunity. Qualified immunity cases come down to whether state agents “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” That trash language comes from the 1982 Supreme Court case Harlow v. Fitzgerald. Honestly, how in the hell is “I didn’t know I was violating an established constitutional right” a defense to police misconduct? Why in the hell should I have to establish that a cop watched enough episodes of Law & Order to know that beating the snot out of me was wrong? How is it possible that courts are allowing cops to skate by on their constitutional violations under the theory that the courts themselves haven’t done a good enough job of articulating what constitutional rights exist? What kind of white nonsense system lea...