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#BlackLivesMatter and Qualified Immunity

We can all agree that 2020 has been extremely eventful year so far. 


We’re going through a major pandemic and there’s been widespread protests and rioting in the USA over the treatment of African-Americans and minorities by the police.


Trinidad had its share of protests over the #blacklivesmatter movement but there are big differences between the system in the United States and that in T&T in terms of holding the police accountable for their actions.


One of the big differences is the whole concept of what’s called “qualified immunity”.


In the USA, in cases like George Floyd or Johnny Leija where both victims died because of the force used by the police officers involved –the victims’ families and Black Lives Matters’ supporters argued that the police used force which was disproportionate or exceeded the level of the "threat" which they faced by George Floyd or Johnny Leija. They said that the use of force was against the rights protected by the US Constitution. 


Now, although violations of Constitutional rights by public officials can be protected by suing the public official, the principle of qualified immunity can defeat lawsuits against police officers. When qualified immunity was first created, it was enough if police officers could show that they acted in good faith and with probable cause.


The law has changed a lot since 1967 but, if anything, it has become more onerous on persons who sue the police for breaching their constitutional rights. 


Qualified immunity now is a two-step test. First, persons would have to show that the police have used excessive force in violation of the Fourth Amendment of the US Constitution. Legally, this is not a high standard to meet.


Second, the court must decide whether the police should have known that their actions violate the constitution because precedent – meaning past cases against the police – “clearly establish” that their actions were unlawful. 


The second step really relies on older cases with similar or identical facts in which the police’s actions were found to have been in violation of persons’ constitutional rights.


However, it’s extremely easy to distinguish cases. Differences may be as simple as the distance between the police officer and the man in the case. In one case, although all other facts were identical, because the incident in the older case occurred in a Target parking lot and in the current case it occurred on a roadside, the lawsuit was unsuccessful.


No two incidents with the police are going to be the same. There will always be some difference. This means that it will be extremely difficult to prove that the police have violated your rights. 


Without going into the reasons why qualified immunity remains a legal defence in 2020 and in the era of human rights, you may be questioning why this is relevant to T&T. Well, in our next post we’re going to consider how the police can be held accountable in T&T and whether qualified immunity can protect the police in Trinidad. 

Last updated 20 May 2020

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