"Qualified Immunity": A License to Commit Criminal Violence

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Two times on the same night, Shannon Kanda was severely beaten by two male strangers. The first pair of assailants gave her a bloody lip and a few mild bruises. The second group, who arrived a few minutes later, shattered her skull against a metal staircase handrail. As a result of that attack, the victim was forced to undergo reconstructive surgery to replace broken ocular bones.

Kanda had done nothing to provoke either attack. The first group of assailants fled and were never captured. The second – Officers Gregory Moore and Jonathan Cantrell of the Coeur d’Alene, Idaho Police Department – actually filed a battery charge against their victim.

After the first beating, Kanda – who was very intoxicated — went to a friend’s apartment and called the police, in the familiar and entirely mistaken belief that they would be of help.

When Officers Moore and Cantrell arrived, they asked her to come down to the parking lot where the attack had taken place. Kanda later explained that she hesitated because “she feared for her safety and was not assured by the officers present.”

As the three of them left the apartment, Kanda allegedly brushed away Officer Cantrell’s hand. Offended by this defilement of his consecrated person, Cantrell snapped, “Hey, you don’t hit the police” – as if the action of batting away uninvited contact from a stranger were a form of criminal assault.

Seconds later, according to the police account, Kanda “swung” at Officer Moore. She doesn’t remember doing anything of the kind. She admits that she was drunk and unsteady, and that the officers “misjudged [her] unsteadiness … as movements threatening to their security.”

Whatever it was that Kanda did, Moore reacted by attempting a “brachial stun” – a pressure-point strike to a nerve cluster at the side of the neck – but missed, and wound up slugging her in the jaw. Cantrell jumped in and both cops threw the victim face-down on the stairwell landing, slamming her face into the iron handrail as they did so. As she was bleeding into the pavement, Kanda was handcuffed and told that she was under arrest for “battery on a police officer.” Significantly, however, that charge wasn’t formally filed until after she had initiated a lawsuit against the department and the City of Coeur d’Alene.

Cantrell and Moore responded to that suit by insisting that the two of them – armed, highly trained, intrepid defenders of the public weal – faced an imminent threat from a drunk and traumatized woman, and “feared for their safety.” They also suggested that Kanda’s eye injury might not have been their fault – that it may have been inflicted by the first pair of thugs to assault her that evening. This would mean, of course, that they slugged and body-slammed a woman who had already been beaten up so severely that she required major surgery on the following day. 

The last argument in the officers’ arsenal was the inexhaustibly useful doctrine of “qualified immunity,” the unfailing legal shield of uniformed abusers.  U.S. District Court Judge Edward Lodge granted their motion to dismiss the suit, ruling that the “takedown” was justified, and that the act of shattering Kanda’s skull against a handrail was “unintentional.” Therefore, according to Lodge, “a reasonable officer in the Defendant Officers’ position could have concluded that their actions were lawful.”

Bereft of options and resources, Kanda was compelled to plead guilty to the battery charge. She also had to endure the self-pitying commentary of Police Chief Wayne Longo, who simpered that his officers often respond to “difficult situations” and find themselves “targets of meritless lawsuits.”

If Kanda had won her lawsuit, neither the political clique ruling Coeur nor their costumed emissaries of violence would have personally paid the judgment. However, once the suit was dismissed on the grounds of “qualified immunity,” the municipal government informed Kanda that it would seek a court order requiring the victim to pay the city’s legal costs.

Fortunately, Kanda won her appeal to the U.S. Ninth Circuit Court of Appeals, which quite sensibly observed that no “reasonable” officer could consider body-slamming an already traumatized woman’s head and driving her face into a steel railing to be “proportionate under the circumstances.” The District Court’s ruling was reversed and the case was sent down for further proceedings, which are still underway.

Shannon Kanda’s ordeal is both intensely infuriating and tremendously useful. It is difficult to conceive of a more compelling illustration of the fact that state-sanctioned criminal violence is dramatically worse than the private sector variety.

Rather than pursuing the thugs who had attacked Kanda, the police who had been summoned to “help” made it their priority to punish the victim for being insufficiently deferential to their “authority” by inflicting an even worse beating on her. The machinery of “justice” then punished her again when she sought redress for her injuries. To paraphrase the eternally relevant insight from Edmund Burke, Kanda found that the agents of the “policed society” in which she lives were of no use in protecting her, but ready and eager to complete her ruin when given the opportunity.

The violence inflicted on Kanda by Cantrell and Moore was incontestably criminal in nature, and should have been prosecuted as such. The most significant obstacle to prosecuting that crime – and similar ones committed under the color of state “authority” in Idaho, most likely every day – is found in 37 words added in 1997 to the section of the Idaho State Code dealing with assault and battery:

“No peace officer may be held criminally or civilly liable for actions or omissions in the performance of the duties of his office under this chapter, if the peace officer acts in good faith and without malice” (18-921).

There is no reason to believe that if Kanda had been slugged and body-slammed by two private citizens, her assailants would have been able to avoid prosecution by attesting to their own “good faith” and absence of “malice.” Neither would the armed functionaries called police, if they were authentic peace officers. Police, however, are part of a privileged criminal caste. They claim the right to violate the moral law by committing aggressive violence, and an exemption from prosecution for such criminal acts.

In his magisterial work For a New Liberty: The Libertarian Manifesto, Murray Rothbard observed that for a reasonably free society to exist, “police and the other authorities [must be subject] to the same law as everyone else….. [I]f everyone is supposed to be subject to the same criminal law, then exempting the authorities from that law gives them a legal license to commit continual aggression.”

That license is found in the abhorrent doctrine of “qualified immunity,” which the Idaho State Code condenses into 37 words. One immensely useful reform – pending the complete abolition of the coercive caste, of course – would be to delete that provision from the Idaho Code, and to do the same with similar measures in other states.

Police accused of “excessive force” often complain that it is difficult to calibrate the acceptable level of coercion, and insist that as long as they believe their actions are lawful, they can’t be questioned. Abolishing the spurious doctrine of “qualified immunity” would relieve police of that burden by requiring them to recognize that all aggressive violence is criminal, and will have individualized legal consequences.

“But if this principle is adopted, it could effectively end law enforcement as we understand it!” police apologists would protest. To which I would reply: “Oh, good – I see I’m not going too fast for you.”

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