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Police Violence and the 14th Amendment

The 14th Amendment was one of several constitutional changes made in the wake of the Civil War. The necessity of guarantees outlined in the due process clause had become all too apparent in the Reconstruction South. The authors of the amendment reported to Congress that across the South orchestrated campaigns of violence and intimidation were being carried out against freed Blacks by White police officers. In the summer of 1866, for example, policemen were instrumental in leading organized attacks on Blacks that left hundreds dead. The conclusion of Congress, and the state legislatures that would ratify the amendment, was that without new constitutional guarantees, state and local governments in the South would not respect the lives or fundamental rights of Black citizens.

The amendment was duly ratified, and Congress enacted the Civil Rights Act of 1873, which encoded the amendment in Chapter 42
§ 1983 of the U.S. Civil Code. The U.S. Supreme Court, however, was reluctant to acknowledge the sea change the 14th Amendment represented. It took the Court over 40 years to even recognize that the due process clause was applicable to state and local governments.

To make matters worse, the Court crafted the concept of qualified immunity to shield individuals from personal liability. The idea of qualified immunity is that a person acting under color of law is not personally liable for violating someone’s civil rights unless that person knew or should have known they were violating clearly established law. Added to this shield against personal liability is the essentially blanket immunity government agencies enjoy via the 11th Amendment. Together, these protections have allowed the courts to regularly refuse to hold police officers and their departments accountable.

In addition, the Supreme Court’s standard on excessive police force is so murky that it renders the bar set by qualified immunity nearly impossible to overcome. In Graham v. Connor in 1989, the Court ruled that cases of excessive police force must be judged by asking what was “reasonable” under the circumstances and defers to the judgment of police officers to determine what force could be necessary in a particular situation. When applying this standard, finding a clear violation for purposes of qualified immunity is extraordinarily difficult.

The refusal of the Court to give full effect to the due process clause has essentially robbed the 14th Amendment of any meaningful force. As a result, the federal protections designed in Reconstruction to rein in police violence have remained dormant. The terrible history of police brutality, especially against people of color, that has plagued America for so long will likely continue unless the accountability demanded by the Constitution is enforced by the Court. 


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