Qualified Immunity and the Colorblindness Fallacy: Why 'Black Lives [Don't] Matter' to the Country's High Court
| Author | Katherine Enright & Amanda Geary |
| Pages | 135-186 |
ARTICLES
QUALIFIED IMMUNITY AND THE COLOR-
BLINDNESS FALLACY: WHY “BLACK LIVES [DON’T]
MATTER” TO THE COUNTRY’S HIGH COURT
KATHERINE ENRIGHT AND AMANDA GEARY*
TABLE OF CONTENTS
I. INTRODUCTION........................................ 136
II. BACKGROUND......................................... 141
A. History & Origin of Section 1983....................... 141
1. The Roosevelt Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
2. The Court’s Continued Quest to Curtail the Efficacy of the
Civil Rights Acts............................... 146
3. The Justices’ Ideologies and the Impact on Legal
Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
4. Erosion of Protection under the Court’s later Interpretation
of Section 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
5. Saucier v. Katz................................. 154
6. Pearson v. Callahan............................. 155
B. Modern Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
III. ANALYSIS............................................ 164
A. Current Judicial Themes & Trends in the Application of Qualified
Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
1. The Impact of the Supreme Court’s Examination of
Qualified Immunity............................. 164
2. Framework of Objectivity & Reasonableness. . . . . . . . . . . 166
a. The Judiciary’s Fallacy of “objectivity” and “reasonable-
ness”.................................... 169
* © 2022, Katherine Enright & Amanda Geary.
135
b. The Fallacy of Colorblindness in Policing............ 170
B. Moving Forward................................... 174
1. The Modern Model of Policing in the United States...... 175
2. Judicial Reform. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
IV. CONCLUSION......................................... 185
I. INTRODUCTION
On a November day in Charlotte, North Carolina, Dethorne Graham felt the
onset of an insulin reaction.
1
Mr. Graham, an individual with diabetes, asked his
friend, William Berry, to drive him to a convenience store to “purchase some orange
juice to counteract the reaction.”
2
When he arrived at the store, Mr. Graham “saw a
number of people ahead of him in the check-out line.”
3
Anxious about his deteriorat-
ing condition, Mr. Graham “hurried out of the store,” and asked Mr. Berry to drive
him to a friend’s house instead.
4
Meanwhile, Officer M.S. Connor with the Charlotte Police Department was
watching Mr. Graham as he entered the store and “hastily” left without purchasing
anything.
5
Officer Connor found Mr. Graham’s conduct “suspicious” and followed
his vehicle as it left the parking lot.
6
A half mile from the convenience store, Officer
Connor activated his patrol lights and initiated a traffic stop.
7
When he reached the driver’s side window, Officer Connor was promptly
informed that Mr. Graham “was [] suffering from a sugar reaction.”
8
In response,
Officer Connor ordered Mr. Graham and Mr. Berry out of the vehicle.
9
Mr.
Graham exited the vehicle, sat down on the curb, and briefly lost consciousness due
to a drop in blood sugar.
10
When police backup arrived, one of the officers “rolled [Mr.] Graham over on the
sidewalk and cuffed his hands tightly behind his back, ignoring [Mr.] Berry’s pleas to
get him some sugar.”
11
The officer turned to Mr. Berry and exclaimed, “I’ve seen a
lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with
the M.F. but drunk. Lock the S.B. up.”
12
1. Graham v. Connor (“Graham I”), 490 U.S. 386, 388 (1989).
2. Id.
3. Id. at 388-89.
4. Id. at 389.
5. Id.; Graham v. City of Charlotte (“Graham II”), 827 F.2d 945, 946 (4th Cir. 1987) (claiming Mr.
Graham was “erratic” and “agitated”).
6. Graham I, 490 U.S. at 389.
7. Id.
8. Id. The Fourth Circuit explained Mr. Graham suffered from a “diabetic insulin reaction” or “a reaction
caused by a drop in blood sugar[.]” Graham II, 827 F.2d at 946.
9. Graham I, 490 U.S. at 389.
10. Id.; Graham v. City of Charlotte (“Graham III”), 644 F. Supp. 246, 247 (W.D.N.C. 1986).
11. Graham I, 490 U.S. at 389.
12. Id.
136 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 13:135
While Mr. Graham was lying on his stomach with his hands cuffed behind his
back, the officers picked him up and leaned him face-down on the hood of Mr.
Berry’s car.
13
As he began to regain consciousness, Mr. Graham asked the officers to
check his wallet for his diabetic decal.
14
The arresting officer responded by telling
him to “shut up” and “shoved his face down against the hood of the car.”
15
The offi-
cers then carried Mr. Graham to the police cruiser and threw him in the backseat.
16
Mr. Graham waited in the car until dispatch confirmed that he “had done nothing
wrong at the convenience store.”
17
During this encounter, the officers broke Mr. Graham’s foot, bruised his forehead,
injured his shoulder, cut his wrist, and permanently damaged his right eardrum.
18
In
a moment when Mr. Graham desperately needed assistance, the police brutalized
him. Mr. Graham was presumed guilty until proven innocent, dismissed as a liar and
a drunk, and held at the mercy of law enforcement while he suffered a medical
emergency.
19
Mr. Graham’s encounter with Officer Connor is a microcosm of a systemic prob-
lem that plagues policing in the United States. For the scores of men and women
who suffer from police abuse and predatory practices, the Constitution is supposed
to provide recourse. The right to recover for claims like Mr. Graham’s, however, has
been severely curtailed by the judicially-created doctrine of qualified immunity.
20
The Fourth Amendment of the Constitution of the United States protects “[t]he
right of the people to be secure in their persons. . .against unreasonable. . .seizures[.]”
21
Pursuant to this constitutional guarantee, “free citizens” like Mr. Graham may sue a
police officer for excessive force employed during an “arrest, investigatory stop, or other
seizure of his person.”
22
Importantly, an individual cannot bring a lawsuit against a state
law enforcement agency or police officer seeking monetary damages strictly “under” the
Fourth Amendment.
23
Instead, the litigant must employ the statutory vehicle for reme-
dying such a Fourth Amendment violation—18 U.S.C. § 1983.
24
13. Id.
14. Id.
15. Id.
16. Graham I, 490 U.S. at 389; Graham II, 827 F.2d at 947 (explaining Mr. Graham was “forcibly shoved
into the car”). Mr. Graham described: “I was face down, an officer on this arm, officer on this arm, officer on
my left leg, and on my right leg, and they [were] carrying me to the police car, and one of them opened the
door and threw me in like a bag of potatoes and closed the door.” Graham v. Connor, 1988 WL 1094091, at
*5-6 (1988) (Petition for Writ of Certiorari).
17. Graham I, 490 U.S. at 389.
18. Id. at 390 (explaining Mr. Graham suffers from “loud ringing in his right ear that continues to this
day”).
19. See id. Mr. Graham was placed in custody before officers determined that he committed a crime and
was released only when a call from dispatch proved his innocence. See id. at 389.
20. See Anderson v. Creighton, 483 U.S. 635, 638 (1987) (Stevens, J., dissenting) (opining Court’s appli-
cation of qualified immunity “stunningly restricts the constitutional accountability of the police.. ..”).
21. U.S. CONST. amend. IV.
22. Graham I, 490 U.S. at 388.
23. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (“[S]ection [1983] is not itself a source of substan-
tive rights, but a method for vindicating federal rights elsewhere conferred”).
24. Id. at 140 (explaining “first inquiry in any § 1983 suit.. .is whether the plaintiff has been deprived of a
right ‘secured by the Constitution and laws’”) (internal citation omitted).
2021] QUALIFIED IMMUNITY AND THE COLORBLINDNESS FALLACY 137
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