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I'm Shereen Marisol Marjie. I'm Gene Demby, and this is Code Switch from NPR. In the wake of the police killings of Briona Taylor and George FOID, people are re asking hard questions about what exactly we should do with the police, should be abolish the police, defund them, take them out of schools, get rid of the bad apples, because police departments have proven again and again and again resistant to even the most modest reforms. Even the bad apples defense that you just mentioned is girs past the fact that those bad apples really face any consequences.

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Police officers saw them lose their jobs for brutality and misconduct.

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They're rarely arrested or indicted, let alone convicted for wrongdoing in criminal cases when it comes to the police. People almost certainly could not get justice in a criminal case with criminal charges. But what if you decided, okay, okay, I try to get redress by suing them in a civil case? Well, it turns out that is virtually impossible because of this once obscure notion called qualified immunity, qualified immunity.

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So let's say you are driving on the street, you get pulled over.

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Jose Duffie Weiss is a lawyer and the co-host of the Justice in America podcast at the Appeal, a journalism organization that focuses on the criminal justice system.

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A cop tells you to get out of your car. He beats you within an inch of your life. And later, you want to sue him for the harm that you endured. For any medical bills or for any sort of resulting financial consequences that came out of your experience, you know, if it was a random person. Right. Aside from their being possible criminal consequences, you could sue them in civil court and they could find that that person owes you money.

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But this is not how it works when it comes to the police.

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Jose said it doesn't really matter how outrageous the police behavior is. It doesn't matter if everyone looking at the details of the case agrees that the behavior is really bad.

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There are just example after example of just incompetence, combined with just recklessness, combined with maliciousness. Right. Or that the courts just say, like, this is actually OK. I mean, it's not okay morally, but it's OK legally.

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One of the examples that Jose points to happened in Colorado in 2015, a man who was suspected of shoplifting, armed, was being chased by police and he barricaded himself in a stranger's home.

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And basically, the cops are trying to force him out and they blow up the walls of a stranger's house with explosives. And then the police drove an armored vehicle into this man's house. They fired tear gas into the house. It basically just like destroyed this person's home. And he's a stranger. He doesn't know the suspect. He's not accused of any wrongdoing anyway. When he tries to sue these officers, the court finds that there is no clearly established standard that says that the officer shouldn't have blown up his house.

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And so they find that he's not owed any compensation, that he can't actually sue them in court.

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And as bad as that story is, like Jose says, it's not the only egregious example in this Giambra.

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There's one story about a kid who was told by cops to lay on the floor. Cop shoots him, just shoots a 10 year old kid. They are actually trying to shoot the dog, which to me makes it even worse that like, not only did you shoot my kid, you shot my kid by accident because you're trying to shoot my dog, which also. Why did you need to shoot my dog?

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And in case you're wondering, I know I was the child who was shot did survive. But according to the brief filed in this case, the 10 year old who was shot wasn't the only kid at the scene. There were others. Two were toddlers and they were all asked to get on the ground at police gunpoint.

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The court said, OK. That's outrageous behavior, but it doesn't violate qualified immunity, qualified immunity.

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You might have recently seen a lot of protest signs that read end qualified immunity right alongside Black Lives Matter and abolish the police. A lot of people who want to rein in police misbehavior say this is the first step, get rid of qualified immunity, because as we just heard, it places an extremely high bar on civil suits against police officers.

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But it sizes basically that people who are public officials can really only be held accountable in civil court if they violate rights that are, quote, clearly established. And by that they mean is their case law. Have there been other examples that I've been brought to court that are similar enough in context where someone has been held accountable? And the answer is almost always no.

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So you heard Jose mentioned this clearly establish standard, right? So let's just use the case of Briona Taylor, for example. Brianna Taylor was shot and killed in her bedroom at night after the Louisville police carried out a no knock raid on our house in order for Brianna Taylor's family to successfully sue the police. Her family would have to point to another previous lawsuit that was allowed to go forward with the same set of facts. You know, the so-called clearly established standard.

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And when the courts say the same set of facts. That's what they mean. The same set of facts is very narrowly drawn.

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So it's not like, oh, there was a no knock warrant. Something went wrong and there was a no knock. We're hearing something went wrong. Right. Maybe it'd have to be a no knock warrant at an unidentified house in the middle of the night. And the person would have to be sleeping. Was it a Sunday? Was it a Monday? Were there two of them? Were there three of them. Was my kid in the room? You know, did they knock once or twice?

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Like you could really draw any situation to not be similar to something else if you want to.

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And that creates this bizarro cycle. Qualified immunity effectively prevents cops from being successfully sued or even as a practical matter, getting a suit filed in the first place because lawyers know how hard these cases are to win. So there's rarely precedent to use in a civil case when the police violate someone's civil rights.

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And if you listen to this and you're wondering how T.F. did we get to this point?

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What I understand that we need to go back like way back to the passage of something called the Ku Klux Klan Act of 1871. Does she love that? We have stuff like that. And that's what we're gonna do after the break. Don't go anywhere. This message comes from NPR sponsor Witness Dock's presenting Unfinished Deep South. The new investigative True Crime podcast sets out to answer a dark question looming over a small Arkansas town since 1954 who lynched Izidor Banks, a wealthy African-American farmer and World War One veteran who found a way to prosper in the Jim Crow South.

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The show sets out to restore Izidor Banks legacy. Listen to unfinished Deep South in Stitcher, Apple podcasts or wherever you listen. This message comes from NPR's sponsor Better Help. Better Help offers licensed professional counselors who specialize in issues such as isolation, depression, stress, anxiety and more. Connect with your professional counselor in a safe and private online environment. When you need professional help, get help at your own time and your own pace. Schedule secure video or phone sessions plus chat and text with your therapist visit.

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Better help Acom slash code to learn more and get 10 percent off your first month. These days, Chelsea Handler tries to keep her and her friends white privilege in check. She starts like really getting weepy. And I was like, what? What are you doing? You just said your wife, four children. You can talk. I can't cry.

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Comedian Chelsea Handler on White Privilege and a new book. Listen to It's Been a Minute. From NPR Shereen Gene Codes, which.

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So before the break, we were talking about how we ended up with qualified immunity, which makes it pretty impossible to hold individual police officers liable for wrongdoing. Right.

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And Jose Duffie Rice, who we just heard from, told me that one of the important things we have to hold in our heads is that how our laws are written is very different from what those laws actually look like once they're interpreted by the courts. The roots of qualified immunity go back to the late eighteen hundreds reconstruction, a time when white Americans were trying to reassert their power over recently freed black people, oftentimes violently.

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So back, back many years ago, the Civil Rights Act of 1871, which is also known as the Ku Klux Klan Act, the Ku Klux Klan Act. Does she love that? We have stuff like that.

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It was passed by Congress in 1871 and it gave Americans the right to sue public officials who violate their rights.

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I mean, it was pretty straightforward, right? It said every state official who causes a, quote, deprivation of any rights guaranteed by the Constitution and laws shall be liable to the party injured. And that's pretty clear. Right. Like, if you get beat by the police officer, you get to sue the police officer.

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So this law, the Ku Klux Klan Act, made it possible to sue a host of public officials because many of them were Klan members or sympathetic to the Klan. And those officials likely interfacing with the public most often were the police.

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We know that like the history of white supremacy and this country is closely interwoven with the history of law enforcement, either racist behavior by civilians has been overlooked by law enforcement or law enforcement are openly and proudly racist white supremacist members of the KKK and are willing to sort of use their badge in their power to harm black people.

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So the idea of this act was basically that there should be some ability for anybody, but especially for black people to seek relief and court when someone who is a public official has mistreated them.

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For nearly a century, Jose says this was how the law was understood and there were instances in which people did successfully sue the police as was intended.

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So in 1961, there's this kind of interesting case called Man Roe versus Pape, where this black family, the Munros, sue Chicago police officers and these police officers had basically in the wee hours of the morning broken into these people's house.

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Rounded them up, made them stand completely naked in their living room, searched every room. Going through all their private stuff, you know, ruining their furniture, like ripping covers off of mattresses and going through their drawers, and then they arrest James Monroe, who was the father in this family. And they detain him and they question him for hours. The Monroes decided to sue.

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And after their case made its way through the court system, the Supreme Court said the mom rules could sue those officers who harassed them and they could do so under the Ku Klux Klan Act.

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And basically, they say, like this is the whole point of the Civil Rights Act of 1871. Right. The whole point is that when an official abuses their position. There is some remedy outside of the criminal court that people have to hold that official accountable. Now, that's that's an interesting case for many reasons. Like I think one is obviously this family's black and the courts have not traditionally been particularly sympathetic to black people in America. You know, during this era, I mean, this is a few years after Brown v.

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Board. Right. Like, this is a few years before the voting rights. I think this is an era where the Supreme Court has some moments of clarity around race in America.

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But not long after the Monroe case was decided in 1961, America's posture towards policing and crime started to change. In the hot summer of 1964, a white off duty cop shot and killed a 15 year old black ninth grader named James Powell in New York City.

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And what followed was days of rioting in Manhattan and Brooklyn. Just a month after that, in Philadelphia, another instance of police brutality set off days of rioting there. Barry Goldwater, the conservative Republican running for president at the time, warned his supporters about the dangers of crime in the streets. And President Lyndon Johnson seeing white fears about the unrest as a possible threat to his re-election, declared a war on crime.

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But the people also recognize that the national government can and the national government should help the cities and the states and their war on crime to the full extent of its resources and its constitutional authority.

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Among the many things that LBJ proposed was expanding the ranks of the police across the country, adding thousands of new officers to city streets and not only to the ranks of police officers expand, but so did the already considerable protections extended to them. Soon, the Supreme Court tightened the rules from the nearly century old Ku Klux Klan Act that allowed people to sue the police.

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And in 1967, the Supreme Court invents this thing called qualified immunity. And they sort of say this is like a small exception to the rule. If a public official acts in, quote, good faith and believes that their conduct is authorized by law, then they are not accountable. Right. So that that was giving like some level of out to public officials.

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And from there, the constraints on the so-called Ku Klux Klan Act kept getting tighter and tighter. And fifteen years later, the courts decided to change the criteria for suing public officials again. They decided that it didn't just matter if a public official was acting in good faith.

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But even if officers or officials act maliciously, unless the victim can show that his or her right was, quote, clearly established, they basically can't get any relief. And so this is just an example of where courts make law. Right?

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Because what the law said, you know, from 1871 said if you violate someone's rights, you owe them. Right. You're liable.

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And the courts came in and said, well, we actually think that, like, you're liable except this and you're liable, except that. And all of a sudden, what you see is a situation where nobody is liable.

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And that's where we are today. Right. And of course, judges don't have to interpret or defer to qualified immunity in this way. But Jose says there are a few reasons why they might want to. For one, they might not want to rule against cops because they're sympathetic to the police or because they want to avoid blowback from police departments. Other judges may decide to defer to qualified immunity for the police because they're sympathetic to how it protects police from being sued to the point of poverty.

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Like here are these officers that have to make split second decisions there in dangerous situations. They have to, you know, decide what they're going to do kind of quickly on their feet. There's obviously room for things to go wrong. But we want officers to make you know, we don't want them to to not do something necessary because they're worried about going bankrupt.

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So we've been talking this entire time about how hard it is to sue police officers. But some victims of police abuse have received compensation over the years.

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Right. Because between 2004 and 2019, the city of Chicago put out seven hundred fifty seven million dollars to settle lawsuits against the city's police department in just the year.

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Twenty alone. The New York City Police Department paid out two hundred and thirty million dollars to settle claims. It's to the point where some say they just allocate for millions of dollars in police settlements and their yearly budgets. And Jose says they look these substantial payments to plaintiffs are definitely much larger than they would get if they sued individual police officers. But qualified immunity has the effect of offloading all those settlements or to taxpayers.

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High profile Democrats and some libertarians have called for the end to qualified immunity. Democrats like Senators Kamala Harris and Edward Markey. Corey Booker, Ayanna Pressley, who's a Democratic representative from Massachusetts, co-sponsored a bill with libertarian Justin Amash that would eliminate qualified immunity. But the fight over qualified immunity has become like everything else in Washington. A mostly partisan one, Tim Scott, the lone black Republican in the Senate, called any attempt at doing away with qualified immunity a, quote, poison pill for bipartisan police reform efforts.

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Back in June, when we talk the Jozi, the Supreme Court was actually weighing whether to take another look at qualified immunity. But the court decided not to. And in a sign of just how weird this moment is politically, Cherine, the only justice who wanted to take up the question this go round because he was skeptical of how the doctrine was applied. Was Clarence Thomas, who was arguably the most conservative member of a pretty conservative leaning court?

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We are living in interesting times understatements, although to be fair, Sonia Sotomayor has been critical of qualified immunity.

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She just chose not to take it up for this next term.

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This is very true. That's very fair. So I asked Jose. OK. Everyone is paying attention to qualified immunity now from organizers and protesters to some lawmakers. Would getting rid of this legal doctrine make it easier to rein in bad policing? And she said, yes, getting rid of qualified immunity would probably help. But we have to remember that a doctrine like qualified immunity is the result of the almost boundless discretion and power we afford to the police, not the reason for.

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The problems of law enforcement are so much broader and so much more systemic that I don't expect that shifting qualified immunity alone will really result in a total change of behavior among cops. Right. What we see in police misconduct is so deeply entrenched in the culture and is so reflected in how our culture protects police at every juncture that qualified immunity is like one drop in the bucket. Joe. That's a show. Before we go, we want to give you a heads up about another cause, which is dropping in your fees later this week.

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Our very own Karen Grigsby Bates did a deep dive on what it means to be a Karen.

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And to me, Karen is no longer the sort of annoying person who, like, wants to see your manager. She's the one who's willing to mobilize violence against you because she can.

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So can't wait to hear that. Karen, get your tissues out. Not our Karen.

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Not all Karen's hashtag natto. If I was on Twitter, we're at NPR Coatsworth. You can follow Cherine. Get rid of Maraj. That's all. One word. And me at G.D.. Two or five. This D to involve will hear from you all. So our email is Cote's, which at NPR dot org and subscribe to the podcast on NPR one or wherever you get your podcast. This episode was produced by Jeff Kong and edited by Lia Dianella.

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Nico, a speedy fool, looked over some of the legal ease. Big thanks to him. Full transparency.

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He's my partner and a civil rights attorney and shout out to the rest of the codes which massive GMAR Devarajan, Karen Grigsby Bates, Ella Johnson, Natalie Escalon, Melissa Joung Perry and Steve Drummond. I'm Jake Demby. And I'm Shereen Marisol Moreschi.

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The easier piece. Whenever you face a choice, it helps to think like an economist. And this week on Planet Money, Summer School will start off our course in economics with a workout for your brain. How to decide what something truly costs. Listen now to Planet Money from NPR.