Slap in the face: QI video breakdown

Content creator @karan_menon created this hilarious short illustrating the circular logic of qualified immunity.  We break down how how the clip translates into actual law.

 There are two things going on here that deserve a closer look. 

Did he get in trouble then?

Public officials are protected by qualified immunity unless they violated “clearly established law.”  It might seem obvious that stealing $225,000 worth of assets violates the Fourth Amendment prohibition of “unreasonable searches and seizures.”  But it’s not “clearly established” according to the law.

“Clearly established law” means that there needs to another case where a court ruled nearly-identical conduct violated a constitutional right.  Note how in the case above, the Ninth Circuit noted that there were previous instances of similar conduct that courts had found violated the Fourth Amendment: but because they occurred in another jurisdiction, the law wasn’t “clearly established” in their court.

No one actually believes police officers and other public officials sit down to read their local court reporter for guidance on what practices do and do not amount to Constitutional misconduct.  Nor should they need to scour case law to understand that theft is not a constitutionally permissible form of seizure.  The “clearly established” standard is bizarre and arbitrary, and it’s only half of the equation.

According to the rules, he can’t get in trouble now.

While “clearly established” is a groundless standard, it is at least logically functional.  So long as courts acknowledge the first instance of misconduct, a body of law would eventually, albeit haphazardly, re-establish the causes of action Congress intended when it passed §1983.  The Supreme Court recognized this in Saucier v. Katz:

This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.

Saucier v. Katz, 533 U.S. 194

The Supreme Court then promptly unacknowledged this in Pearson v. Callahan, ruling that judges could choose which factor to decide first.  Because of the Court’s ruling Pearson, the same conduct can be dismissed repeatedly for lack of “clearly established law” simply because the court, in its discretion, has decided not to establish it.  The result is a baseless, self-defeating standard that allows the same misconduct to go unpunished time and time again. 

So there you have it: qualified immunity really is just like a never-ending slap in the face.

More of Karan’s work can be found on TikTok, YouTube, and Instagram.