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A movement triggered by a number of incidents of police brutality in the United States of America, “The Black Lives Matter” movement arose as a reaction of the African-American community to police brutality against the members of the community, post the death of George Floyd. The aim of the movement is to bring political and public attention to the atrocities committed by the police in the United States of America against the African-American community (referred to as the ‘Black Community’ or ‘Black People’), which are a result of the racial discrimination against the African-Americans, existing since a very long time in the States.
At present, the participation of policemen is discouraged due to reasons that emanate from the interests of the protesting community as well as the protocol that ought to be followed by the police forces in the States. This article looks into the reasons for which this discouragement ought to not exist, and the need for a relaxed protocol for the allowance of the participation of police. While doing so, the article also brings out the need to bring down certain qualified immunities that the Police officers in the States acquire, along with the extent to which these should be reduced and/or prohibited to ensure the restriction of any sort of arbitrary action against public welfare.
Communal Interests and their Implications
The primary factor to be considered in light of the allowance of participation of the police is the interest of the protesting community. The underlying fear is the police officer causing a detriment to the protests in place by hindering a progress in the movement, and the same ultimately becoming a detriment to the motive of acquiring political and public attention. In this process, African-American police officers as well as American police officers in favour of the movement cannot actively take part in the movement, due to the opposition that the community extends to the police force at large. This, coupled with directions from higher officials to scale down the protests to a significant extent causes a situation of rift within the police department itself, i.e. interpersonal conflicts within the department itself. The same get aggravated due to the absence of legitimisation of participation of police, due to a strict protocol and legislative urge on them to abide by the interests of the police department, as the same is ultimately the interest of the State, no matter the oppressive nature of such a protocol.
Two fundamental issues that arise herein are; 1) the absence of a mechanism other than an unofficial process of mediation to resolve interpersonal conflicts to the aforesaid extents, and 2) the manner of deployment of the police officials for the purpose of scaling down protests and movements, which may in many instances of a community outrage, be contrary to their interests. In circumstances not involving the public at large the first issue can be treated independent of the second. However, in instances that involve a community outrage, such as the Black Lives Matter Movement, the second issue leads to the first, due to the differing stances of police officers with regard to the movement.
It becomes imperative to understand here that by virtue of existence of varying interests in a sensitive community outrage, it may become fundamentally difficult for an individual, either belonging to or supporting the protesting community to go against the very community, by virtue of working for an institution, which goes against the movement and reacts to suppress the community. What is hence needed is a mechanism to selectively identify the individuals, who may not have an inclined interest in the protest or movement, and can work for the police forces. At the same time, what is additionally required is a strict protocol in place, directing response in a manner adequate to the manner of protest, irrespective of the protesting community, i.e. a protocol categorizing and defining the extent of response, clearly pointing out to terms of liability for non-adherence, something that the Police Codes in the United States do not provide at present. In addition to this, there needs to come a mechanism beyond unofficial mediation to resolve conflicts, and the same must be made transparent to a certain extent, considering the quintessential role that the media plays and the need for public attraction if the issue is not of confidential nature as under 18 U.S. Code § 1905. Further, the point of liability mentioned above refers to making police officials criminally liable for acting beyond the scope of powers granted to them. This comes through scraping off, of the immunity that they have against criminal proceedings in a Court of Law, an idea that we engage with, in the next section of the article.
Individual Interests of Police Officers
Another concern of the Police forces is the right to freedom of expression that gets hindered by virtue of their non-allowance to represent the community or to forcibly act in accordance with the instructions of the superiors, which may go against their interest. This freedom of expression of police officers comes as something recognized by the United States Supreme Court in Garcetti v. Ceballos. This case, however, also allows for the supersession of these rights keeping in mind the interests of the police force as collective entity (determined by Superior Officers), something that should ideally be done away with by the factors mentioned previously, which include determination of interests of police officers followed by selective appointment at times of a community outrage.
At the same time, another key concern stands with regard to the involvement of the police officers with vested interests in the protests, considering the obligation of maintenance of law and order. For the said purpose, the Protocol that has been mentioned previously for the purpose of defining the extent to which the police force can react ought to contain a provision regulating the participation of these officers. This can be achieved by directing these police officers to not significantly act or involve in these protests, in such a manner, so as to escalate them, i.e. to ensure keeping of the protests as peaceful as possible. This at the same time does not imply any sort of opposition to the aim of the protest. What this ultimately creates is an interest or pressure group, making an attempt to influence the government, something that even gets a legitimate status under a democratic setup. This is turn would help acquire the public and political attraction that the movement actually seeks.
A contradiction that may possibly seem to arise with regard to the latter part of the protocol here is the obligation on policemen, participating in the protests, to keep the same, as peaceful as possible. However, in reality, the same does not stand as a contradiction because the same ensures no abstention from the role and duty of police forces, while legitimising their interests, and at the same time ensures the absence of any chance or opportunity of suppression of these protests through violent acts of opposing police forces in cases of them turning violent, as well as reduced burdens of maintaining law and order on the police officers on duty. It becomes imperative to note here that police officers participating in these protests would be doing so not only as members of the protesting community, but also in the capacity of a police officer, due to which at any time, if the protest escalates beyond what is regarded as peaceful, as under the First Amendment of the Constitution of the United States of America and further affirmed in an obligatory manner on the State in Hague v. C.I.O, a senior officer of the State Police Force can always direct the participating police officers to take the role of bringing down the intensity of these protests, on the failure to do which, the appointed police officers on duty may be required to act strictly as per the protocol (mentioned previously in this article for the purposes of proportionate response). For the purposes of defining the said proportionate response, as required by the protocol, we wish to draw reference to Guiding Principles On Use of Force, drafted by the Police Executive Research Forum.
§ 1983, Qualified Immunity and Black Lives
A significant hurdle which inhibits the scope of implementation of better enforcement mechanisms against the police is the “qualified immunity” doctrine which has slowly developed and concretised itself as a bad law, especially when we consider, the recent turmoil leading to #blacklivesmatter movement and in general, the age-old oppression of the Black people.
Qualified immunity protects police officers from any and all liability in civil suits if their actions do not violate known and “clearly established” laws. The immunity also shields the enforcement officers who use excessive force against ordinary US citizens. As a result, police regulating bodies are unable to come up with any tool to incentivize their behaviour, leaving the victims and grieving families powerless in the face of an unforgiving legal doctrine that provides little to no justice.
Qualified immunity is most commonly pleaded by the police in §1983 violation cases which, in common legal parlances touches upon the 4th amendment issues of search and seizure. The law which was originally enacted in 1871 has been referred to as “Section 1983” after its placement in the U.S. Code.
(This post has been authored by Tejas Hinder and Ravi Shankar Pandey. Tejas and Ravi are part of the Editorial Team and are second year law students at National Law Institute University, Bhopal and Dr. Ram Manohar Lohiya National Law University, Lucknow respectively)
Pearson v Callahan 555 US 223, 231 (2009). ↑