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

by Elie Mystal

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 leaves cops free to racially discriminate if a “reasonable” cop didn’t know their particular method of discrimination was unconstitutional?