Criminal Law

OP-ED: The Supreme Court Enabled Horrific Police Violence by Ignoring Constitutional History

The killing of George Floyd in the custody of Minneapolis police officers and the waves of police violence we have seen in recent days in response to protests around the country serve as a testament to the Supreme Court’s betrayal of our Constitution. The Supreme Court has enabled horrific police violence by ignoring our constitutional history. Ending police violence and the killing of black people was one of the critical purposes of the 14th Amendment.

The long line of police killings of unarmed men and women of color—of whom George Floyd is just the most recent—is, in substantial part, the result of the Supreme Court’s failure to give the history of the 14th Amendment its due. The protests across America are seeking to give voice to these basic precepts of justice that the Supreme Court has long ignored. “Stop killing us,” the message reflected in signs across the country, is the response to the Supreme Court’s jurisprudence that has, in effect, legalized so many brutal, unspeakable deaths at the hands of the police.

In some areas, constitutional history is murky or debatable. Not so here. The 14th Amendment was added to the Constitution against the backdrop of a campaign of terror and violence against black Americans by white police officers. The authors of the 14th Amendment, in a report that detailed the need for universal guarantees of liberty and equality, laid out, often in gruesome detail, how white police officers were engaged in a campaign of unending violence against black people. Police beat and killed black Americans while turning a blind eye to crimes committed against them. The 14th Amendment was designed to put an end to such police violence and killings. It vindicated the demands of black Americans that “now that we are free we do not want to be hunted,” we want to be “treated like human[] beings.” Recently emancipated slaves could not take their place as equal citizens in our nation if police officers were free to brutalize them.

Police brutality and murder flared up in the summer of 1866, as Congress completed its work on the amendment and the American people considered whether to ratify it. In Memphis, Tennessee, and New Orleans, white police officers led bloody massacres of black citizens and their allies, which left hundreds dead and many more badly beaten. These tragic events served as painful reminders that state governments would not respect the fundamental rights of black citizens and that police violence and discriminatory policing would continue unchecked without new constitutional guarantees. As an investigation of the Louisiana massacre concluded, without new protections, “the whole body of colored people” would continue to be “hunted like wild beasts, and slaughtered without mercy and with entire impunity from punishment.”

This part of the 14th Amendment has never gotten its due. The Supreme Court has erased these efforts to eliminate unjustified police violence from our constitutional story. And in doing so, it has turned its back on a core promise of the 14th Amendment.

The Supreme Court’s conservative wing says that we must be faithful to the Constitution’s text and history. But originalists on the Supreme Court have turned a blind eye to the efforts of the 14th Amendment’s framers to check police violence. The Supreme Court has never once recognized that the 14th Amendment was ratified against the backdrop of brutal killings of people of color by the police. Getting this history right is essential to correcting police abuses today.

Rather than taking seriously the 14th Amendment’s history, the Supreme Court’s current approach to police violence enables, rather than constrains, police brutality. The court uses an open-ended test that defers to the police. This enables systemic police brutality directed at communities of color.

In the 1989 case of Graham v. Connor, the Supreme Court insisted that constitutional claims of excessive force must be judged by asking whether police officers’ use of force was reasonable under the circumstances. Further, the court put its thumb on the scales in favor of the police, stressing that reasonableness must be judged from “the perspective of a reasonable officer on the scene” and courts must account for the fact that “police officers are often forced to make split-second judgments … about the amount of force that is necessary in a particular situation.”

This malleable standard has served to condone and legitimize police shootings and killings of people of color. It does not vindicate at all the 14th Amendment’s promise of personal security for all regardless of race.

The Supreme Court has made matters even worse by rewriting Section 1983, a Reconstruction-era law designed to enforce the 14th Amendment, changing the law to give police officers a sweeping immunity from being sued, even when they engage in brutal conduct. Under the doctrine of qualified immunity, a person victimized by the police must show that the officers violated “clearly established” law. In practice, this means that a police officer cannot be sued for violating an individual’s constitutional rights unless there was a prior case closely on point. And because the excessive force standard is so vague and fact-dependent, qualified immunity makes it incredibly difficult to hold police officers accountable for police brutality, as a recent Reuters report showed and which advocates on both the right and the left have decried. When individuals go to court to redress police abuse of power, they almost always find that the courthouse doors are bolted shut.

Rather than giving full effect to a law designed to enforce the 14th Amendment, the court has gutted it to protect police officers and legitimize violations of constitutional rights. As a result, instead of a system of remedies for police misconduct, we have a system that breeds police unaccountability. We cannot hope to rein in police abuses of power if courts give the police a free pass when they violate our rights.

More than 150 years after its ratification, the Supreme Court has buried a critical part of the 14th Amendment’s legacy. George Floyd’s tragic case shows why we need to recover it.