While national attention has often been—rightfully—focused on fatal shootings by police and the ensuing lack of accountability, victims who survive police shootings with severe injuries also struggle to obtain any restitution or accountability from law enforcement.  The doctrine of qualified immunity—a judge-made doctrine that shields government actors from civil liability so long as their conduct does not violate clearly established rights of which a reasonable person would have known—is one significant barrier to survivors’ efforts to seek justice.

It’s difficult to know for sure how many people are injured by police shootings each year.  The United States lacks a centralized database of police misconduct, and as the Brennan Center for Justice has recognized, current reporting is “woefully incomplete.”  In 2020, the FBI revealed that only 27% of federal, state, local, and tribal law enforcement agencies had submitted any data on police use of force for the previous year.  A VICE News investigation of both fatal and nonfatal shootings shows that officers shoot more than twice as many people than was previously assumed, and that some police departments have no systems in place at all to track nonfatal shootings by their officers.

But even without broad statistics about those left severely injured by police, many victims have told their stories.

In 2015, Andrew Thompson and his brother Bryson Chaplin were shot by a police officer in Olympia, Washington, after a grocery store employee called 911 and said they had attempted to steal a case of beer.  Thompson suffered severe physical and emotional injuries, and Chaplin was paralyzed from the waist down—he now uses a wheelchair and requires full-time care.  The officer who shot the brothers claimed that they tried to assault him with a skateboard, and both brothers served jail time for the alleged assault—which they deny—and attempted theft.  Meanwhile, the Olympia Police Department and local prosecutors cleared the officer of all wrongdoing.

In 2018, Ellazar Williams was shot by a police detective under similar circumstances: a store employee had reported that he was outside the store with a gun and several other people causing a disturbance, but a gun was never found.  And while the detective claimed that he fired because Williams came at him with a knife, surveillance footage only captures Williams fleeing the detective.  Williams was shot in the back, and is now paralyzed below the waist as a result.   A grand jury determined that the Albany Police detective was justified in his use of force.  The case received considerable attention from activists when it became clear that the investigative unit of the Albany district attorney’s office—which had significant influence over presenting evidence to that grand jury—was largely staffed with ex–Albany Police officers.

And just last year, Jacob Blake was shot seven times in the back by a police officer in Kenosha, Wisconsin, responding to a domestic complaint.  Blake was left paralyzed below the waist, adding fuel to last summer’s protests against racism and police brutality.  Despite the national outcry over Blake’s case, the Kenosha district attorney declined to file any charges against the officers.

In recent years, bystander videos have documented the problem of police mistreatment, often disproving police accounts of violent encounters.  As discussed above, in Ellazar Williams’s case, a video that shows the teenager running away contradicts police claims about the circumstances of the shooting.  But despite the recent increase in documentation and media attention, many prosecutors at the state and federal levels are still reluctant to bring criminal charges against police officers due to close relationships between district attorneys’ offices and local police departments.  At the federal level, one investigation has revealed that, between 1995 and 2016, federal prosecutors declined to pursue complaints of civil rights violations against police officers 96% of the time.

Because of the failure of the criminal justice system to hold police accountable for misconduct, the only option for many victims and their families is to file civil suits against police officers for monetary damages, as many of the individuals named above have done.  These damages are almost always paid by police departments, not individual officers.  For people left with complex and lifelong medical needs after a police shooting, monetary damages are often desperately needed because the victims of police shootings are unable to afford the care they need.  People living with paralysis are likely to have severe health complications that commonly include heart problems, blood clots, and chronic pain.  Over a lifetime, a patient with a spinal cord injury may incur as much as $5 million in health care costs.  In addition to physical problems, people who survive shootings often suffer long-term psychological effects, including PTSD.

Cody Cox is one of those victims who survived a police shooting that resulted in complex medical needs.  In 2014, following a brief police chase, a deputy in the Clear Creek, Colorado Sheriff’s Office shot Cox in the neck through the passenger window of Cox’s car, even though Cox was unarmed and his car was boxed in by traffic.  The shooting rendered Cox a quadriplegic, fundamentally altering the course of his life.

Cox filed a civil lawsuit pursuant to 42 U.S.C. § 1983 for damages against the police officer who shot him, but a federal court of appeals ruled that the officer was entitled to qualified immunity.  In practice, courts frequently apply qualified immunity in a manner that creates a nearly impenetrable barrier to liability.  In Cox’s case, the court of appeals ruled that Cox’s rights were not clearly established because the court had previously granted qualified immunity to an officer in a case that the court deemed to be more egregious—even though the facts of that case were nothing like those in Cox’s case.

Cox filed a petition for a writ of certiorari, asking the Supreme Court to review the lower court’s decision.  CAC filed an amicus brief in support of Cox’s petition, urging the Court to grant the petition, reverse the decision of the court of appeals, and use this opportunity to revisit its qualified immunity doctrine, which has no grounding in the text and history of 42 U.S.C. § 1983.

While we still don’t know whether the Supreme Court will agree to hear Cox’s case, the Court has recently provided a glimmer of hope about its willingness to revisit its qualified immunity doctrine.  In two cases this term involving lawsuits challenging exceptionally horrific incidents in prisons—including one where a prisoner was forced to sleep naked in a freezing cold cell teeming with human waste for six days—the Court has issued brief, unsigned orders indicating that the court below (in both cases, the U.S. Court of Appeals for the Fifth Circuit) took its qualified immunity doctrine too far.

At the same time, the Supreme Court recently declined to hear a qualified immunity case involving the excessive, but nonfatal, use of force by a white police officer, who assaulted Shase Howse, an unarmed Black man, for no apparent reason while he was fumbling for his keys on the porch of his own home.  Howse’s case illustrates that people of color are hit particularly hard by the effects of qualified immunity, as they continue to be disproportionately victimized by police officers’ use of excessive force.  No Justices dissented from the denial of certiorari in Howse’s case.

These cases demonstrate that many victims of police violence who survive their brutal encounters with law enforcement officers are denied justice as a result of qualified immunity.  Qualified immunity allows law enforcement to act with impunity, and it is victims who are left with the consequences.