Abstract

Excerpted From: Leilani Stacy The Movement for Black Lives: A Case Study of Constitutional Understandings of Qualified Immunity and the Argument for a Legislated Constitution, 32 Southern California Review of Law & Social Justice 201 (Spring, 2023) (216 Footnotes) (Full Document)

In 2013, three Black organizers, Alicia Garza, Patrisse Cullors, and Opal Tometi started the Black Lives Matter movement in reaction to the acquittal of George Zimmerman, who murdered Trayvon Martin. Eight years later in 2021, the organized Movement for Black Lives (“M4BL”) has become a globally recognized coalition of more than fifty organizations. In 2016, the Movement crafted the Vision for Black Lives, relaunched in 2020, that lists six demands: (1) end the war on Black people; (2) divest from the police and invest in making communities safer by providing affordable housing, living wage employment, education, and health care; (3) provide reparations to Black people for past and continuing harms; (4) ensure economic justice; (5) community control; and (6) political power. Through its first two prongs, end the war on Black people and “invest-divest,” the Movement emphasizes the urgency of ending police violence against Black communities. In 2020, two-thirds of Americans affirmed that Black Lives Matter and supported the protests following the police killing of George Floyd. However, public opinion continues to vary as to how and to what extent we should seek reform.

Conversations about police reform after George Floyd's murder centered around defunding the police. In a parallel vein, legal commentary focused on ending the doctrine of qualified immunity. Although there has long been debate about the constitutionality of qualified immunity, the Movement's prominence has coincided with increasing critiques of the doctrine. Interestingly, the public also began to engage in discussions about qualified immunity reform. For example, 74% of respondents to one poll supported citizens' ability to bring private lawsuits against police officers who use excessive force. As of July 2020, two-thirds of Americans supported holding police officers civilly liable for their actions generally.

In this paper, I analyze the Movement's role in reforming qualified immunity. First, I outline the M4BL's history, demands, and stance on qualified immunity. Next, I discuss Jack Balkin's, Reva Siegel's, and Robin West's respective theories of social movements' influence on constitutional change. I then apply their theories to see which, if any, best captures the ways in which BLM interacts with qualified immunity jurisprudence and potential reform. Throughout the essay, I draw heavily upon Amna Akbar's explanation of the M4BL's abolitionist, “imaginative” understanding of law. I hypothesize that Balkin's and Siegel's theories limit the importance of social movements in reimagining the law and the Constitution's role in society. I assert that West's expansive theory of constitutional legisprudence allows for the kind of transformative understanding of law that the Movement demands. Thus, her theory is in line with reimagining the law as a mode of creating equitable social and political systems that are rooted in the power of Black people and communities of color. Throughout this paper, I also highlight how qualified immunity corrodes the development of social movements that we need to progress as a society. Whereas the Civil Rights, women's suffrage, and LGBTQ rights movements have depended on civil disobedience and civil lawsuits to challenge existing laws under the Constitution, qualified immunity operates to stifle this opportunity altogether. Qualified immunity bars social movements such as M4BL from engaging in legal reform through the judicial process.

I began this essay with the biased expectation that I would find that the Movement had not been successful in achieving qualified immunity reform. To this day, we have not seen federal judicial decisions or legislation that even begin to substantially abolish the doctrine. However, interpreting social movements' effects on constitutional change in this way misses the point of radical social movements. For the Movement, qualified immunity reform is not enough; the M4BL does not place emphasis on qualified immunity as a primary demand. Instead, the Movement's focus on divestment from the police, legislative agendas that would empower Black political voices, and reinvestment in community-led social care demands a different kind of constitutional understanding. Abolishing qualified immunity is only the first step in the Movement's Vision of restructured political power and resources. As legal scholars, then, we must co-create a framework and understanding of constitutional change that can encompass social movements' transformative visions of the future. Perhaps that future includes legal scholarship on the ways that social movements start conversations about ending the status quo of violent systems as well as transform the next generation of voters to legislate a new system; but I will leave that question for another paper.

[. . .]

The Court has not decided to gut the qualified immunity doctrine, and the Justice in Policing Act has not been passed. Yet the Movement has not failed, even in its efforts to end qualified immunity. As Akbar and West suggest, the Movement goes further than advocating for traditional jurisprudential constitutional change. In order to fully encompass the M4BL's Vision for an equitable future, a legislated Constitution and legisprudence is needed. While the Movement advocates for the abolition of qualified immunity, both for police and all public officials, it also goes much further. The Vision centers its abolitionist agenda in building power within local communities of color and redistributing resources from police into social programs so that people of color are not put in harm's way from the start. Justice after the fact will still never be enough to recover the hundreds of Black lives lost at the hands of police or public officials generally. We instead should look at the ways that cities have started to defund the police and make progress toward investing in communities of color. Voters are coming out to reject traditional models of policing, and the public as a whole is starting to understand what it would actually mean to shift resources away from police and into communities in response to the Movement's agenda-setting. These are the changes that Akbar and West highlight as essential to social movements' agendas: not just a gradual reform of the law, but truly transformative accounts of what our future society could be. Admittedly, we are not there yet. But if we allow radical social movements to guide the way, we might be able to start to dream with them.

Diversity Chair, Southern California Review of Law & Social Justice, Volume 32; J.D. Candidate 2023, University of Southern California Gould School of Law; B.A. Economics and Political Science 2018, Wellesley College.