His hands were up. He was Unarmed. It still wasn’t enough.
Even with the facts clear and the law settled, it took almost ten years for the killing of Terence Crutcher to be cleared for trial. Proof that qualified immunity is a barrier to accountability.
On September 16, 2016, Terence Crutcher—a 40-year-old father, a student enrolled at Tulsa Community College, and a man working to rebuild his life—stood next to his SUV on the side of a road in Tulsa, Oklahoma, surrounded by police officers, with his hands raised above his head.
Minutes later, he was shot and killed.
The video did not leave much to interpretation. It showed an unarmed Black man, compliant, with no weapon visible and presenting no immediate threat. Based on that the Constitution has required of law enforcement for decades, there was no justification for the use of deadly force.
However, what followed was not accountability. It was nearly ten years of litigation over a question that should never have been in doubt:
Would the system even allow a jury to hear the case?
Now, the system has answered that question—not by changing the law, but by finally insisting that it be applied. On March 31, 2026, the Tenth Circuit Court of Appeals rejected the qualified immunity defense of the officer who shot and killed Terence, clearing the way for a civil action filed by the Terence Crutcher estate against the officer to proceed to a trial before a jury, to determine whether the killing of Terence violated his constitutional rights.
But this is not justice. It’s a long-delayed correction.
WHAT THE COURT DID
The Tenth Circuit held that the district court improperly granted qualified immunity and failed to view the facts in the light most favorable to Mr. Crutcher’s estate, as the law has long required.
When courts resolve factual disputes in favor of officers rather than victims at the summary judgment stage, they cripple the process by obviating the role of the jury. If a jury of twelve Tulsans had been allowed to hear and judge the facts of the case (as the appellate court made clear they must be), I believe the outcome would have been very different, because this is what they would have seen and heard:
Terence Crutcher was unarmed.
His hands were raised.
He did not pose a threat of death or serious bodily injury to the officers present.
Under those circumstances, a reasonable jury could find the use of deadly force unconstitutional.
That was never allowed to happen.
THE LAW WAS NEVER UNCLEAR. IT WAS SIMPLY DISREGARDED.
The governing standard for use of force by law enforcement officers has been clear for decades. Deadly force may be used only when an officer has an objectively reasonable belief that a suspect poses an imminent threat of death or serious bodily injury.
Not when there is confusion. Not when there is hesitation. Not when the suspect refuses to comply with commands.
The Supreme Court said this plainly in Tennessee v. Garner, 471 U.S. 1, (1985) and reaffirmed it in Graham v. Connor, 490 U.S. 386, (1989), requiring that force be judged based on objective reasonableness under the totality of the circumstances—not justified after the fact by claims of subjective fear.
The district court disregarded that standard, and it did so because of qualified immunity.
WHAT IS QUALIFIED IMMUNITY?
Qualified immunity appears nowhere in the Constitution. It does not appear in the Ku Klux Klan Civil Rights Act of 1871, which was enacted to provide a federal remedy against state actors who violate individuals’ constitutional rights.
No, qualified immunity is a judicially created doctrine that was significantly expanded in 1982 Harlow v. Fitzgerald (457 U.S. 800). Initially, it was intended to shield peace officers from legal jeopardy due to reasonable, lawful on-duty conduct.
But qualified immunity has been twisted and perverted into a gatekeeping mechanism that protects peace officers from being held accountable for even the most egregiously unlawful, unconstitutional conduct by preventing courts from even exploring the underlying constitutional questions.
Often, qualified immunity is not based whether the conduct was unlawful. Instead, it asks whether a prior case exists with nearly identical facts. As interpreted by most courts—doubtless under massive pressure from police unions and pro-law enforcement elected officials—unless the exact scenario has already been litigated and decided, the claim can be dismissed.
Dismissed…if the conduct is clearly wrong.
Dismissed…even if the victim’s constitutional rights were plainly violated.
Dismissed…even if an unarmed Black man is shot and left to bleed out in the street.
WHAT THE COURT DID—AND DIDN’T DO
For nearly ten years, qualified immunity functioned in the Terence Crutcher case exactly as many law enforcement agencies count on it to function: not as a tool to evaluate facts or clarify law, but as a mechanism to stop the case before it could reach a jury.
As a mechanism to allow an officer to dodge accountability and deny a grieving family justice.
The appellate court finally said what should have been said from the beginning. “A jury must be allowed to decide.” But why did it take years to reach this point? Because qualified immunity is not truly about protecting law enforcement officers. It’s about protecting an unjust system.
The Tenth Circuit rule is significant because it reopens the excessive force claim and puts the constitutional question to where it belongs: before a jury.
That was not an accident. It shows that proving wrongdoing is only the beginning of the battle. The greater battle is connecting that wrongdoing to systems of power. That is what the people who wield that power do not want.
QUALIFIED IMMUNITY MUST BE ABOLISHED
I have served as lead counsel for the Crutcher family since the beginning of this case, alongside a team that includes Ben Crump and Karin Portlock of Gibson Dunn. For all that time, the litigation has not simply been about what happened to Terence Crutcher.
It has been about whether the legal system would allow the facts to be heard in the first place. When the fight is about access to a jury rather than the merits of the case itself, it reveals something deeper about how accountability is structured—and avoided.
Dr. Martin Luther King Jr. warned that a devotion to order over justice is how injustice sustains itself—not only through open defiance, but through systems that appear neutral while producing unequal outcomes.
Qualified immunity has become one of those systems. It operates through procedure and speaks in the language of fairness and careful jurisprudence. But those are shams. In reality, qualified immunity blocks accountability, prevents constitutional claims from ever being heard, and allows agents of the state—wielding the power of life and death—to act without restraint, knowing they will pay no price if the worst happens.
Qualified immunity must be abolished. A doctrine that consistently prevents courts from questioning of whether constitutional rights were violated is not serving the Constitution. It is undermining it.
Congress has the authority and the responsibility to act. The Civil Rights Act of 1871 was intended to provide a remedy to those violations, but qualified immunity has stripped that remedy of its force. Restoring it requires more than adjustment.
It requires removal.
AUTHOR’S NOTE
This piece reflects the framework I develop in Redeem a Nation: normal never protected us—it preserved hierarchy. Qualified immunity is one of the clearest modern examples of that principle in operation. If accountability is to be real, the Constitution must be enforceable in practice—not avoidable in procedure.