Early in quarantine, and shortly before Black Lives Matter (BLM) protests, infamous words echoed around the country: “I can’t breathe.” Repeatedly and resolutely, George Floyd used this phrase until his death in Minneapolis, Minnesota. Former police officer Derek Chauvin was charged with murdering Floyd — and was eventually convicted in court — presenting a rare instance of police accountability after discriminatory and violent practices.
In Flagstaff and around Arizona, people were angry. I read about systemic racism, discussed inequality and marched in solidarity at BLM protests. I smiled for a number of reasons: My friends talking, petitions circling and conversations of change starting nationwide. From my 19-year-old perspective, and somehow happening during a global health crisis, this was progress.
But Floyd died in the system. Although litigating Chauvin and remembering Floyd are good starting points, an inestimable number of people have been h u r t , abandoned or killed by the same principles of racism and inequality. Many of their names are left unheard, some closer to home than the Minneapolis Police Department.
Almost two and a half years before him, another human died at the hands of police: Muhammad Muhaymin.
This time, however, the brutality happened at a community center in Phoenix. When trying to use the bathroom with his service dog and chihuahua, Chiquita, a manager refused and called the police. After officers arrived, Muhammad was allowed to use the bathroom — as the law required — but authorities ran his name and found a warrant for possession of drug paraphernalia.
According to Ben Cohen, one-half of Ben & Jerry's, and musician Aloe Blacc’s podcast, “Unaccountable,” Muhammad was worried about Chiquita and resisted arrest — before officers killed him.
Based on the audio from that day, his situation was eerily similar to Floyd’s: “Why are you doing this?” “I can't believe this” and finally, “I can’t breathe” were statements he desperately used.
After eight minutes and 30 seconds, approximately, Muhammad’s body went limp, he vomited and his heart stopped. While Chiquita ran in circles, he died on the sidewalk.
“At one point, as many as six Phoenix police officers were on top of Muhammad as he pleaded for his life,” Blacc said during the podcast.
Unfortunately, Muhammad’s demographics are unsurprising: Black, homeless and diagnosed with schizophrenia. His sister, Mussalina Muhaymin, said Chiquita was his “child.”
Unlike the situation between Floyd and Chauvin, there was no cellphone footage of Phoenix police officers killing Muhammad, which eliminated public pressure in forcing prosecutors to file charges.
Based on these circumstances, Blacc said Mussalina’s only option was to litigate, following a civil rights violation, but another standard makes that nearly impossible: Qualified Immunity.
According to the American Bar Association (ABA), Qualified Immunity holds police and other law enforcement bureaus to “near-zero accountability,” despite their job to enforce such principles and their obligation to act reasonably.
As Cohen addressed in the podcast, plenty of irony stems from police agencies being trained in and trusted to use lethal force — unlike other elements of society — despite their unaccountability in doing so.
As referenced by the ABA, and remarked by Don Willett, a federal judge on the U.S. Court of Appeals, “qualified immunity smacks of unqualified impunity [to some observers], letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly.”
During the Civil Rights Movement of the 1960s, the Supreme Court created Qualified Immunity and “eviscerated” congressional legislation allowing citizens to sue police officers for violating civil and constitutional rights, as Cohen said.
The right to litigate passed in 1871, when ironically, police officers by day and Ku Klux Klan (KKK) members by night were terrorizing Black communities. This overlap between law enforcement and white supremacy translated into the people’s right to prosecute, but again, everything changed in the '60s and with Qualified Immunity.
“Under this doctrine, government agents — including, but not limited to police officers — can never be sued for violating someone’s civil rights, unless they violated ‘clearly established law,’” the ABA stated. “While this is an amorphous, malleable standard, it generally requires civil rights plaintiffs to show not just a clear legal rule, but a prior case with functionally identical facts.”
Further, the ABA concluded courts commonly hold police officers and government agents as violating someone’s rights, but no remedy is possible without the exact precedent of misconduct.
Looking back to Muhammad’s situation, then, is demonstrative of Qualified Immunity making justice unlikely — and nearly impossible.
Attorney Faraj Harem found an “eerily similar” case in Anaheim, California, as mentioned in the podcast, wherein officers kneeled on Brian Drummond and put him in a vegetative state during a mental health episode. He died seven years later.
Despite parallel, and almost identical, circumstances, litigators found one difference: Muhammad’s hands were forcefully put in front of him, while Drummond’s were handcuffed behind him the entire time.
In all likelihood, this minute distinction is enough for Qualified Immunity to protect the podcast. Muhammad's case is still scheduled for an April 25 trial, albeit four year after his death, according to Associated Press. However, if history shows anything, the odds are unfavorable.
“The system is rigged; it’s rigged to catch only the most blatant and egregious violations of law,” attorney David Chami remarked.
Despite all the downsides, there is hope.
Although states must abide by federal law, at least to an extent, they are capable of passing their own legislation.
According to the National Conference of State Legislators, Colorado statutorily limited Qualified Immunity for police officers and law enforcement officials in cases at the state level. Further, and similar to the congressional legislation enacted when KKK members were commonly in the police force, officers are personally liable for 5% or $25,000 of the judgment — whichever is less — if their actions are proven unlawful.
Through HB 6004, Connecticut also eradicated governmental immunity as a defense, but without referencing Qualified Immunity explicitly.
Under President Joe Biden and the Democratic administration, progress is finally starting on a national level. According to Congress, the House of Representatives passed the George Floyd Justice in Policing Act on March 3, which limits Qualified Immunity as a defense to liability.
However, NPR noted the act faces an uphill battle in the Senate, where Republicans are pursuing a different plan to limit chokeholds — but not ban them. The last update provided by Congress recognized the Senate as receiving this legislation, but provided no timeline for voting.
Despite these developments, officers and the Phoenix Police Department have not faced consequences for Muhammad’s death. Aligning with the theme of Cohen and Blacc’s “Unaccountable” podcast, there has been little to no accountability.
However, Attorney General Merrick Garland, Assistant Attorney General Kristen Clarke and the Department of Justice (DOJ) announced an investigation in August.
“This investigation will assess all types of use of force by PhxPD officers, including deadly force,” a DOJ release stated. “[It] will include a comprehensive review of PhxPD policies, training, supervision and force investigations, as well as PhxPD’s system of accountability, including misconduct complaint intake, investigation, review, disposition and discipline.”
The DOJ’s assessment is pursuant to the Violent Crime Control and Law Enforcement Act of 1994, which prohibits law enforcement officers from depriving individual rights through patterns and practices of conduct.
“One of the highest priorities of the Civil Rights Division is to ensure that every person in this country benefits from policing that is lawful, effective, transparent, and free from discrimination,” Clarke said. “Police officers across the country must use their authority in a manner that adheres to the Constitution, complies with federal civil rights laws and respects human dignity.”
Cohen and Blacc, meanwhile, demanded individual action. The U.S. Capitol Switchboard is available for anyone to call — at (202) 224- 3121 — and connect with their state senate’s office.
Be direct: Qualified Immunity is nonsensical, and it must end.
In our longstanding system of racism and inequality, change must come from everywhere, especially from the people.
On Jan. 4, 2017, when police officers killed Muhammad at a community center, I was returning to high school from winter break. My life was normal: Stress about classes, excitement about sports, uncertainty about college. Meanwhile, a human died for trying to use a bathroom and for worrying about his dog.
Until a few weeks ago, and upon reading a piece in USA Today, I had never heard Muhammad’s name — probably. Even worse is the possibility that I watched his name on the news, glanced at it on a headline or listened as someone mentioned it. Truthfully, I have no idea.
The doctrine of Qualified Immunity, on the other hand, was more recognizable. Even though I knew about it, and hated the irony of police officers enforcing accountability for others while evading it themselves, I was unaware of its calamitous effect.
“Qualified Immunity is killing him a second time, because it’s allowing the individuals who perpetuated this to get away with it — and continue to get away with it,” Mussalina said about her brother.
Not all police officers are bad, but many are, and the system in which they operate is even worse. Real heroes do not wear uniforms; instead, they are loving, fighting and charging their way toward reform. They are targeting the very structure that assigns uniforms.
Mussalina authored the opinion article that educated and inspired me on her brother’s life. Regardless of when and where I heard Muhammad’s name for the first time, I remember it because of her.
After her article, USA Today stated Mussalina is a HIT Training Manager in a community health center, and one who “devoted herself to the pursuit of justice” for Muhammad. She also works with the Campaign to End Qualified Immunity, which is the same organization Cohen co-chairs with Jerry Greenfield, the second-half of Ben & Jerry's. After losing her brother to the system, Mussalina is advocating for and advancing toward equal treatment under law.
Remember one thing: She is the hero.