Earlier this month, Mississippi federal court judge Carlton Reeves reluctantly held that a white police officer who detained, interrogated, and illegally searched Clarence Jamison, a Black man driving a Mercedes-Benz, for nearly two hours despite clearing multiple background checks, could not be held accountable for his actions. Why? Because his hands were tied by qualified immunity. Judge Reeves relates his frustration in his opinion:
 
“Judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.”
 
Qualified immunity is a legal defense that can shield police officers from liability for misconduct. Once an obscure legal doctrine, it has become a central focus of activists’ calls for police accountability following nationwide protests over police brutality. In fact, officer Derek Chauvin, the cop who killed George Floyd by kneeling on his neck for over eight minutes in a video seen around the world, might evade accountability in a civil suit through qualified immunity.
 
The Supreme Court created the first version of this defense more than 50 years ago as a limited amendment to the Civil Rights Act of 1871, also known as the “Ku Klux Act” because it was meant to protect the rights of freed slaves after the Civil War in the face of the Klan’s reign of terror. Under Section 1 of the act, now referred to as Section 1983, people were given the right to sue state government officials for violating their constitutional rights and hold them liable for damages.
 
Starting in 1967, though, the court amended the law — officers would be shielded from liability if they could show that they acted in “good faith” and had “probable cause” for their actions. Over time, the court has stretched the doctrine to where it is today: An officer who has violated the Constitution cannot be held liable for damages unless the violation was so “clearly established” in the law that any reasonable officer would have known that their actions were unlawful. This requirement is nowhere to be found in the Constitution or any federal statute. Nevertheless, the Supreme Court has developed an absurdly narrow definition of what counts as “clearly established” law.     
 
To meet the “clearly established” standard, the burden is now on the victim to find a previous case with facts nearly identical to their own. This is the burden that fell on Alexander Baxter, whom the ACLU represented in a petition that the Supreme Court recently denied. Mr. Baxter, homeless at the time of his arrest, was chased by two Nashville police officers and a police dog into a basement following a report of a residential burglary in 2014. Once there, Mr. Baxter surrendered by sitting on the ground and raising his hands into the air. Still, the officers unleashed the dog, which bit Mr. Baxter’s armpit, sending him to the hospital for immediate medical attention.
 
Without formal legal assistance and with limited access to the prison’s law library, Mr. Baxter later filed a hand-written complaint from prison, but a federal appeals court granted qualified immunity to the officer. The reason for qualified immunity? Mr. Baxter surrendered by sitting on the ground with his hands up, whereas in the closest prior case, the court ruled in favor of a victim who surrendered by lying down.
 
Yep, that’s it. Because Mr. Baxter could not point to a previously decided case where the suspect had also surrendered by sitting down with his hands up, the officer was off the hook. According to the Sixth Circuit Court of Appeals, without a case with identical circumstances, there was no way for the officer to clearly know that what he did was wrong.
 
But it’s even more problematic than that. Because the Sixth Circuit did not reach the question of whether the conduct was, in fact, illegal, the law still doesn’t clearly establish that police may not order a canine attack on a suspect who surrenders by putting their hands up. This means another officer could claim immunity for the same behavior in the future. It’s a never-ending catch-22: A victim must cite exact legal precedent to win their case, but because judges dismiss so many cases over slight twists of facts without deciding whether the underlying government conduct is unconstitutional, it’s increasingly difficult to create any legal precedent.
 
As District Court Judge Reeves writes in his powerful opinion, “Let us not be fooled by legal jargon. Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.”
 
Qualified immunity is one reason why police are emboldened to use excessive force without fear of repercussions. They know the law protects them, even if they may be violating the Constitution — a fact driven home by Judge Reeves as he lists a handful of the Black people killed at the hands of police. Senseless shootings like Jacob Blake’s and Dijon Kizzee’s will continue occurring because police officers are essentially allowed to gun down Black people with impunity. This is the abhorrent cost our society pays for qualified immunity.
 
Still, there is hope. More lower courts and even Supreme Court justices themselves are starting to question the doctrine, as indicated by Justice Thomas’ dissent from the Court’s decision not to take up Mr. Baxter’s case. It is no longer blindly accepted that the need to shield police officers from financial burden is more important than the need to hold them accountable and protect the rule of law. In fact, officers are virtually never at risk of monetary liability and have contributed to payments in less than one-half of 1 percent of civil rights damages actions. Most costs are paid by municipalities, insurance companies, or unions.
 
The Supreme Court should abolish qualified immunity and return Section 1983 to its original meaning. At the very least, it needs to give guidance to lower courts to make clear that a case with identical facts is not necessary to hold officers liable for their conduct. While these reforms will never repair the harm done to many lives or heal the trauma Mr. Baxter experienced, they will deter future police unlawfulness and, when such abuse occurs, increase the chances that its victims are compensated for the harms suffered.
 
Communities must also demand that other actors — Congress, police chiefs, mayors, and prosecutors — abolish the doctrine and begin funneling resources away from law enforcement and into community services like housing, education, accessible health care, and violence prevention programs. If we truly want systemic changes to policing, these are the institutions that will help communities grow and thrive.

April Rodriguez, Paralegal, ACLU Criminal Law Reform Project

Six months into the COVID-19 pandemic, it is devastatingly apparent that the United States’ longstanding racial inequalities have only been amplified during this crisis. Nowhere is that truer than in health care, including reproductive health care.
 
Even before the pandemic, people of color faced severe barriers to accessing essential reproductive health care as a result of interrelated factors such as structural racism, gendered oppression, and associated economic disparities. Abortion restrictions, such as bans on insurance coverage for abortion or laws mandating delays in abortion care and an extra unnecessary trip to the clinic, have a disproportionate impact on women of color. And Black women are still over three times more likely to die from pregnancy or childbirth than white women. These inequalities, historically rooted in white supremacy, have deadly consequences.  
 
During a global pandemic that is disproportionately killing people of color, restrictions on reproductive health care — like the FDA’s requirement that patients seeking medication abortion care travel in person to a health center for the sole purpose of picking up a pill and signing a form — hold even graver consequences for these communities.
 
In May, we sued over this very requirement on behalf of a coalition of medical experts and reproductive justice advocates, arguing that it is an unconstitutional restriction on abortion access and places people, particularly people of color, at serious risk during the pandemic by requiring medically unnecessary travel and in-person interactions that needlessly increase exposure risks.
 
In a tremendous victory for people who need abortion care, we won: A federal district court ruled that the FDA must suspend enforcement of this requirement for the duration of the public health emergency. But the Trump administration is not giving up the fight; undeterred by their failed attempts to defend this restriction in the lower courts, they have now taken the extraordinary step of asking the Supreme Court to step in.
 
There’s no question that the FDA’s policy — and the Trump administration’s insistence on reinstating it — is a direct attack on the health and safety of people of color. Sixty percent of people who receive abortion care are people of color, including 53 percent who identify as Black or Latinx. As has been well documented, people of color are suffering higher rates of severe illness and death from COVID-19 than white people, both because they experience higher rates of preexisting medical conditions that increase the severity of COVID-19, and because they are less likely to have access to quality care. As a result, the FDA’s requirement is particularly dangerous for people of color. And the nature of COVID-19 spread means that these hazards affect not only the individuals seeking care, but also their families and communities.
 
The Trump administration is well aware of the requirement’s disproportionate effect on communities of color. In fact, the court’s decision specifically found that “abortion patients face particular challenges in traveling … for in-person appointments during the pandemic, many of which arise because 60 percent of women obtaining abortion care are people of color and 75 percent are poor or low-income … By causing certain patients to decide between forgoing or substantially delaying abortion care, or risking exposure to COVID-19 for themselves, their children, and family members, the … requirement presents a serious burden.”
 
Should the Supreme Court grant the Trump administration’s request to reinstate the FDA’s rule, patients of color will again be forced to run a gauntlet of needless COVID-19 exposure risks — sharing a bus or train with others; dropping their children off for childcare — as the price of obtaining essential health care.
 
In our lawsuit, health care providers across the country shared stories about how the FDA requirement has harmed their patients during the pandemic.
 
The chair of the OB-GYN department at the University of New Mexico School of Medicine described the pandemic’s destructive impact on Native Americans in her state, who comprise roughly 11 percent of New Mexico’s population but represented half of all COVID-19 deaths by mid-May. She recounted a story of a Native patient who had to drive several hours from the patient’s community to her practice simply to comply with the FDA’s requirement. In the midst of a pandemic devastating Native communities, this patient was forced to risk COVID-19 exposure for herself, her community, and health center staff instead of safely receiving her prescription by mail.
 
When the pandemic forced medical offices to close, another doctor in New York City, who provides care through a community-based family health center, had to entirely cease providing abortion care to her patients, almost all of whom are people of color. She was able to provide other care through telemedicine but, because of the FDA’s in-person pill pick-up requirement, had to deny care to patients seeking medication abortion simply because she did not have access to a physical office where the patient could be handed the medication.
 
This is the message we hear from reproductive justice organizations, like our client SisterSong Women of Color Reproductive Justice Collective: Just as the harms of severe illness due to the COVID-19 pandemic are not shared equally, neither are the burdens of the FDA’s restrictions on medication abortion care.
 
The FDA’s restriction creates indefensible barriers to accessing abortion care with potential life or death consequences, particularly for people of color. We’re doing everything we can to stop that.

Rachel Reeves, Staff Attorney, ACLU Reproductive Freedom Project

Westlaw and Lexis databases are the backbone of every ACLU lawyer’s job. Whether we’re filing legal briefs in court, lobbying for legislative change, or compiling research, the duo hold information that’s vital for our advocacy. Thomson Reuters, which owns Westlaw, and Reed Elsevier (RELX), which runs Lexis, are the two publicly-traded companies behind each of these products. Though they claim to “advance human welfare” and help their customers “move society forward” by providing the necessary knowledge, information, and analytical tools for researchers, lawyers, and government agencies, they are fueling the mass deportation and detention system.

Together with Palantir, Amazon Web Services, and other data brokers, these private companies sell their data and tools to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). Not only do the tech companies provide access to the sensitive personal information used to destroy communities, they undermine the rights that we and other legal advocates, researchers, and students work every day to protect. 

Thomson Reuters and Reed Elsevier embody the burgeoning contradictions of technology companies that, in the same breath, claim to be in the business of public service, while enabling government agencies to engage in wildly unconstitutional tactics to arrest and incarcerate people in deadly conditions. Thomson Reuters, in addition to operating Westlaw — the mainstay of the legal community — sells access to CLEAR, a portal to billions of pieces of personal information that provides an “ever-evolving, 360-degree view of U.S. residents’ lives.”

Not only does Thomson Reuters have contracts worth millions of dollars with ICE and CBP; records show that Thomson Reuters has an active role in finding and analyzing data for ICE. Records the ACLU published last year also reveal that CLEAR is a gateway for ICE to access the automated license plate reader database run by Vigilant — a private company that collects driver location information through street-level surveillance and sells the data to government and private entities. By selling this location data, the company allows ICE, CBP, and other agencies to circumvent the need to get a warrant or comply with other laws that apply when the agencies collect this information directly. For its part, RELX has contracted with ICE and CBP for access to its LexisNexis suite of services.

Ultimately, Thomson Reuters and RELX store your valuable personal information — phone numbers, addresses, relatives, utility information, credit histories, social media, driver location coordinates, arrest and court records, and myriad other sources that paint a picture of where you live, worship, work, and shop — and then sell it to ICE and CBP. These technology and information services companies ensure that personal information is harvested, analyzed, and served up to ICE and CBP to facilitate their abusive and illegal practices. 

This personal information is easily misused to harm marginalized communities: Police have used driver information gathered through license plate readers to target American Muslims and monitor the license plates of LGBT community members. Most recently, police in Colorado relied on an incorrect hit generated by a license plate reader to pull a Black family out of a rental car at gunpoint, mistakenly believing that plate belonged to a stolen motorcycle.  

The professional ethics of legal representation and research require us to avoid actions that harm our clients and their interests. Conducting legal research that is critical to advancing our clients’ interests should be free of any concern that those tools are also being used to target, arrest, and subject our clients to life-threatening conditions. 

These core principles are why the ACLU is joining the #NoTechforICE campaign: a movement to end the unimpeded flow of mass data and surveillance to ICE and CBP. #NoTechforICE calls upon companies like Thomson Reuters and RELX, as well as Amazon, Palantir, and Microsoft, to stop selling their digital tools to ICE and CBP. Almost 1,500 legal associations, lawyers, librarians, and students have signed an open petition that makes these demands. We are proud to join this movement in coalition with researchers, law students, immigrants’ rights advocates like Mijente and Immigrant Defense Project, and tech workers themselves. 

One powerful tactic employed in this campaign has been to ally with tech company insiders who can help to push their companies to end these contracts. Investors, for example, are concerned about how the surveillance tools sold by Thomson Reuters and RELX may violate human rights law. Earlier this year, #NoTechforICE worked with the British Columbia Government and Service Employees’ Union (BCGEU) to file a shareholder resolution with Thomson Reuters asking the company to address human rights concerns. In June, over 30 percent of independent shareholders voted to support BCGEU’s resolution at Thomson Reuters’ 2020 annual general meeting. 

Beyond Thomson Reuters’ investors, the U.N. Special Rapporteur on the freedom of opinion and expression has called for a moratorium on private companies selling surveillance tools to governments that can target activists and civil society. Tech workers have also joined the #NoTechforICE campaign by pushing petitions and organizing actions to protest their employers’ contracts with ICE. 

#NoTechforICE also provides tools to campus organizers to disrupt the flow of talent to technology companies, which rely on student recruitment to fulfill their government contracts. Other community members can also use the toolkit to understand how their localities purchase services from Thomson Reuters, RELX, Amazon, and Palantir and advocate to bring these contracts to an end. 

It will take sustained pressure from a mass movement of immigrants, workers, students, activists, academics, shareholders, and aligned community members to persuade tech companies that serving ICE and CBP is bad for business, and detrimental to both human and civil rights. Demonstrating your support for the #NoTechforICE campaign by signing its petition is one way to join the fight. Join us!

Vasudha Talla, Staff Attorney, ACLU of Northern California