Opinion: I Didn’t Know What Qualified Immunity Was—Until I Had To

“Beyond the emotional toll, I have learned firsthand what people mean when they say, ‘justice delayed is justice denied.’ As time goes on, witnesses move and their memories fade; every day the case is dragged out by motions like qualified immunity, justice becomes more fleeting.”

This month 27 years ago, I was happy to celebrate my first Mother’s Day with my 2-week-old baby boy, Dante, who was born April 29, 1995. But this past Mother’s Day was the fifth one that I will spend at his grave without any closure, justice or accountability for his death. Qualified immunity is one of the reasons for that.

I never heard about qualified immunity until I became directly affected. I did not know that a legal doctrine, invented by the Supreme Court more than 50 years ago with roots in the Jim Crow era, might bar me from getting my day in court. It turns out that even when the state itself corroborates that your rights were violated, a legal loophole called qualified immunity could prevent your case from being decided on its merits. I learned about this after the worst day of my life, and now I am fighting to end it so no other mother or New Yorker has to learn about qualified immunity the way I did.

Dante was incarcerated at Wende Correctional facility in Buffalo, NY awaiting his appeal. On Oct. 7, 2017, I received a call from a person incarcerated with Dante, telling me that my son had a seizure the night before; when medical help was called “several guards rushed into Dante’s cell and began to beat him.” I immediately called the facility and was given the runaround for hours, before finally being told someone would call me back.

The next phone call was from a reverend at Wende. He began the call by saying, “I need you to sit down.” My whole world stopped, my body went numb, and my heart felt like it was being ripped out of my chest. The reverend was only sent to deliver the news of Dante’s death, but he had no other information. No one at the facility would tell me what happened. When I suddenly realized I did not know how to retrieve my son’s body, I called the facility again to ask. A correctional officer yelled at me, “You should have asked the reverend when you had him on the phone,” and hung up on me. I was treated like garbage.

I was finally reunited with my son for his funeral about two weeks later. As I approached the casket, I fell into complete shock. My son’s beautiful face had been destroyed by the beating and was unrecognizable. I looked for any part of him I could still identify, a part that still looked like him, so I stood at the head of the casket and focused on his nose. Leaning over his face, nose to nose, I quietly sang Twinkle Twinkle Little Star to him over and over again.

Although I was completely overcome with unimaginable grief, I became determined to find out what really happened, and to make sure the people who assaulted my son were held accountable. I spent $20,000 to immediately send a private investigator to obtain statements from witnesses. I drove the 425 miles from my home to Buffalo to pick up medical records from the hospital where he was seen. I am a Nurse Practitioner and I know that no responsible medical provider would discharge a patient who presented with such extreme swelling of the face and head, a CAT scan indicating bleeding on the brain and an abnormal EKG or they would be sued for malpractice. Yet, in spite of the obvious risk, Dante was sent back to the facility and put in a solitary cell where he died, and those who are responsible may be protected from liability due to qualified immunity. The state’s corrections department claims Dante died by suicide.

Four and a half years later, I am still waiting to get any justice. Criminal charges are rarely brought against officers even in the most extreme case of death. Convictions are even rarer. Families like mine have no say in whether district attorneys will bring charges. Although the NYS Commision of Corrections and Office of Special Investigations found that my son was brutally beaten by officers, those responsible never missed a single day of work or pay because of the union, New York State Correctional Officers and Police Benevolent Association, arbitration process that is entirely stacked in favor of the COs.

The last option families like myself are left with to get justice in the civil courts. More than 20 firms declined to take my case, perhaps because they knew something I didn’t: qualified immunity creates an extremely high bar by requiring lawyers to find previous cases with the exact same circumstances in the same jurisdiction, which is particularly difficult when dealing with a system as opaque as the corrections system. It makes it nearly impossible to receive justice.

I submitted hundreds of Freedom of Information Law (FOIL) requests. Over the course of two years, documents, transcripts, photos and records—including an autopsy indicating blunt force trauma all over Dante’s body—began to trickle in. Only once armed with enough detail about what happened to Dante, was I able to convince an attorney to take my case.

In February 2020 a federal lawsuit was filed. In response, several defendants—who because of conflicts of interest were represented by private lawyers paid for with taxpayer funds—invoked qualified immunity. And all defendants, including those represented by the Attorney General’s office which has seemingly unlimited financial resources and time, can—and likely will—raise a qualified immunity defense again at a later stage in the case.

Beyond the emotional toll, I have learned firsthand what people mean when they say, “justice delayed is justice denied.” As time goes on, witnesses move and their memories fade; every day the case is dragged out by motions like qualified immunity, justice becomes more fleeting. Qualified immunity prolongs cases and in turn the suffering, depression and anxiety that people like me face. It means marking another Mother’s Day without any closure.

Nothing will ever take away the pain of losing my only child, but I have decided to turn my grief into power and fight for the passage of The Bill to End Qualified Immunity in NY as the co-leader of the EndQINY campaign.

I will stand in solidarity with other families who have lost loved ones to state violence. We are fighting for the bill that would create a new judicial pathway for victims to obtain justice in the state courts instead of filing a 1983 action in federal court, as is currently the standard. The defense of qualified immunity would be prohibited in state court, creating greater access to justice when the state or federal constitutional rights of New Yorkers have been violated. The bill also importantly has provisions to incentivize attorneys to take on cases like mine under a “catalyst theory,” which can help fuel real transformative change.

The love for my son fuels my determination to find a path towards justice. Real justice is changing the system. We want to prevent violence from happening in the first place and change New York State’s culture of impunity where police and corrections unions have inordinate power to one of accountability, where victims are able to get justice and these types of abuses and violence are prevented in the first place so no other mother or family experiences what I am going through. It is time for the New York State legislature to honor families like mine and end qualified immunity now.

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Darlene McDay co-leads EndQiNY, a volunteer led organization fighting to end qualified immunity in NY. Turning grief and pain into purpose to protect our civil rights. Follow their work on Twitter at @endqiny.