Immigrant communities are often asked to “get right with the law,” but is the law right in the first place? That’s what Alina Das asks in her new book, No Justice in the Shadows. She delves into her experience as the daughter of immigrants, an immigration attorney, and a clinical law professor to explore the intersection of immigration and the criminal justice system.

Too often, she argues, our immigration system is used as a tool of discrimination and oppression, rather than as a tool of justice, and the consequences are dire. Our current immigration system is breaking up families, and forcing people to face persecution — even death — in their home countries, and it’s all based on a false premise of ensuring public safety and national security.

Das joins At Liberty this week to discuss her book, and how we need to fundamentally reenvision the immigration agencies in our country, which she says are ultimately charged with enforcing laws rooted in white supremacy.

The Myth of the "Bad" Immigrant

The Myth of the "Bad" Immigrant

Immigrant communities are often asked to “get right with the law,” but is the law right in the first place? That’s what our guest Alina Das asks in her new book No Justice in the Shadows. She taps her experience as the daughter of immigrants and a...

Immigrant communities are often asked to “get right with the law,” but is the law right in the first place? That’s what our guest Alina Das asks in her new book No Justice in the Shadows. She taps her experience as the daughter of immigrants and a...

Listen to this episode

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