Jonathan Blanks is a Research Associate in Cato’s Project on Criminal Justice. His research is focused on law enforcement practices, overcriminalization, and civil liberties.

The Basics of Qualified Immunity: The Four U’s

Qualified immunity is a legal doctrine invented out of whole cloth by the U.S. Supreme Court that protects government agents, including particularly law enforcement officers, who violate someone’s constitutional rights from federal civil liability. This website is dedicated to explaining how and why the qualified immunity doctrine needs to be eliminated.

There are many technical aspects to the doctrine, which are discussed in more detail elsewhere on this site, but the general public needs to know these four basic facts.

Qualified immunity is:

  1. Unfair: When a government official violates your civil rights, you should be compensated. Qualified immunity denies compensation to individuals who have been wronged by the government.
  2. Unaccountable: Law enforcement agencies at every level of government have proven unable or unwilling to appropriately discipline officers who violate people’s constitutional rights. Likewise, it is nearly impossible to convict an officer for violating someone’s rights while they were on duty. Thus, in most cases, suing an officer is the only viable means a victim has of seeking redress for a constitutional violation. But qualified immunity shields officers from lawsuits even when the court finds that they violated an individual’s constitutional rights.
  3. Unjustifiable: Qualified immunity is based on flimsy, historical rationale that has no legitimate basis in the law. There is no ambiguity in the text of federal civil rights law or the relevant legislative history that supports the qualified immunity doctrine.
  4. Unlawful: Qualified immunity eviscerates the nation’s most important civil rights law. Specifically, it undermines a part of the U.S. Code—lawyers refer to it simply as “Section 1983”—that was enacted after the Civil War to make sure state and local government officials were held accountable for violating people’s constitutional rights.

For these reasons, we call qualified immunity the “unlawful shield” for officers who violate your rights.

What Happened to PoliceMisconduct.net?

The National Police Misconduct Reporting Project (NPMRP) and PoliceMisconduct.net (PM.net) were the products of a non-governmental, non-partisan project by the Cato Institute. NPMRP attempted to determine the extent of police misconduct in the United States, identify trends affecting police misconduct, and report on issues about police misconduct in order to enhance public awareness on issues regarding police misconduct across the country.  NPMRP used media reports detailing both alleged and confirmed cases of police misconduct. All information gathered was manually validated to determine the credibility of the report, whether the report is a duplicate of an existing report, and how each report should be categorized before recording each report to the police misconduct database.

After several years of collecting data, Cato discontinued the day-to-day collection for PM.net in July 2017. We simply lacked the resources to continue our policy work and maintain such a database at a level we find appropriate.

All posts from PM.net website are archived on this website. Spreadsheets of combined data for calendar years 2015 and 2016 will be posted soon and are currently available upon request.

Cato continues to work on the subject of police misconduct. UnlawfulShield.com is our re-purposed police misconduct website to focus on the doctrine of qualified immunity because it improperly protects officers who violate the constitutional and civil rights of individuals.

All media inquiries about qualified immunity or any other police misconduct should be directed to pr@cato.org.

“There Is Nothing Right or Just under the Law about This”

Qualified immunity is a doctrine that can shield police officers and other public officials from civil suits when they violate individual rights in the course of their official duties. According to the doctrine, courts are supposed to first determine whether an individual’s right was violated and then proceed to determine whether the violation was “clearly established” in the jurisdiction—that is, whether the circumstances had happened before. This can lead to perverse outcomes in which a court can find an officer violated someone’s rights, but if the officer did so in a way completely novel, then the officer cannot be held liable for the violation. In other cases, courts can find that similar sounding circumstances aren’t the same and thus officers may prevail because those differences render the right not “clearly established.”

This morning, the Supreme Court ordered a summary reversal of a Ninth Circuit Court of Appeals opinion that had denied qualified immunity to an officer for shooting and injuring a woman. The woman, Ms. Amy Hughes, had a knife at her side and she posed no immediate threat to the officers or the person she was speaking to at the time she was shot. Other officers on the scene held their fire and were trying to gain Hughes’ cooperation before Officer Andrew Kisela shot at her four times. Unfortunately, such decisions have become all too familiar at SCOTUS.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote a scathing dissent of the per curiam order:

If this account of Kisela’s conduct sounds unreasonable, that is because it was. And yet, the Court today insulates that conduct from liability under the doctrine of qualified immunity, holding that Kisela violated no “clearly established” law. I disagree. Viewing the facts in the light most favorable to Hughes, as the Court must at summary judgment, a jury could find that Kisela violated Hughes’ clearly established Fourth Amendment rights by needlessly resorting to lethal force. In holding otherwise, the Court misapprehends the facts and misapplies the law, effectively treating qualified immunity as an absolute shield.

This Court’s precedents make clear that a police officer may only deploy deadly force against an individual if the officer “has probable cause to believe that the [person] poses a threat of serious physical harm, either to the officer or to others.” It is equally well established that any use of lethal force must be justified by some legitimate governmental interest. Consistent with those clearly established principles, and contrary to the majority’s conclusion, Ninth Circuit precedent predating these events further confirms that Kisela’s conduct was clearly unreasonable. Because Kisela plainly lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter, he was not entitled to qualified immunity.

In sum, precedent existing at the time of the shooting clearly established the unconstitutionality of Kisela’s conduct. The majority’s decision, no matter how much it says otherwise, ultimately rests on a faulty premise: that those cases are not identical to this one. But that is not the law, for our cases have never required a factually identical case to satisfy the “clearly established” standard. It is enough that governing law places “the constitutionality of the officer’s conduct beyond debate.” Because, taking the facts in the light most favorable to Hughes, it is “beyond debate” that Kisela’s use of deadly force was objectively unreasonable, he was not entitled to summary judgment on the basis of qualified immunity.

[The majority’s] decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Because there is nothing right or just under the law about this, I respectfully dissent. (Citations omitted)

Today’s order was disappointing, but not surprising. Regular readers know that Cato’s Project on Criminal Justice is now dedicating resources to fighting the doctrine of qualified immunity, and it’s clear that most of the sitting justices support the doctrine. But the fight is worth it because qualified immunity effectively guts the best civil rights protection in federal law and, more broadly, police officers must be held accountable for their unconstitutional actions.

If you’re interested in learning more, you can view the launch event of our qualified immunity effort here. You can read our first amicus brief in the effort here. You can also read Will Baude’s excellent law review article that Justice Sotomayor cited in her dissent, “Is Qualified Immunity Unlawful?” here, (spoiler alert: Yes it is!). And more here, here, and here.

Looking Beyond Racist Police Officers

This week I made my debut at In Justice Today, a blog founded by the Fair Punishment Project at Harvard Law School. My first post warns reformers not to focus solely on individual racist officers because color-blind policies can also have terrible impacts on communities of color:

While it is entirely fair to say that more crime justifies a greater police presence in a segment of a city, that crime does not — or, rather, should not obviate the constitutional rights of the people who live in that area. If statistics showed there were more child pornography producers and distributors in white neighborhoods, the police would not be justified going door to door to intimidate presumptively innocent residents to get consent to search their computers to combat child pornography. Residents would be outraged to be treated as criminal suspects and intimidated to surrender their rights. Yet the GRU eviscerates Fourth Amendment protections for young black men walking down the street as policy, irrespective of any racial prejudice by the officers.

If a policy is damaging a community, the good intent in the officers’ heart is functionally irrelevant.

You can read the whole post here.

Statement on President Trump’s Call for Police Brutality on Long Island

In a speech about criminal gangs before police officers on Long Island, New York today, the President of the United States openly encouraged police officers to abuse people they arrest and take into custody. Daniel Dale of the Toronto Star tweeted that President Trump explained that didn’t want officers to protect suspects’ heads when putting them in police cars, saying “You can take the hand away,” which drew the officers’ loud approval. Concurrent reporting from Asawin Suebsaeng of the Daily Beast confirmed that the call for police brutality drew “wild applause.”

The president’s comments are disgraceful and anathema to responsible policing and the Rule of Law. Causing intentional injury to a handcuffed suspect is not only against police procedure, but is a federal crime for which police officers have been sent to prison. What’s worse, the reaction of the crowd of officers should strike fear into the heart of every parent on Long Island, particularly those of black and Hispanic young men who fit the stereotypical description of the gang members President Trump described.

In the name of law and order, the president made a mockery of the Rule of Law in his call for illegal violence against presumptively innocent suspects. It is a shameful day for the presidency and police agencies across the country should condemn the president’s irresponsible and indefensible comments in the strongest possible terms.

Daily Feed on Hiatus

Dearest NPMRP readers,

I wanted to take a moment to say that the daily feed is on indefinite hiatus. We’re not shutting the site down, we’re just taking stock of what we are and what we’re trying to do. Although we are not currently publishing the daily feed, we are continuing to collect misconduct stories.

The goal is to be the best website we can be for you but we’re figuring out how to make that happen. Keep us in your feeds, we’re not going away. Keep an eye on this space for updates.

Sincerely,

Jonathan

National Police Misconduct Newsfeed Daily Recap 7/12/17

Here are the nine reports of police misconduct tracked for Wednesday, July 12, 2017:

  • Bexar County, Texas: An officer was arrested for family violence. ow.ly/RzB730dzcFf
  • Update: Orlando, Florida (First reported 8/23/16): One of two officers fired last August was rehired to avoid an arbitration loss. He has been re-assigned to airport duty, given 25 public complaints on his record. ow.ly/jrst30dzdvV
  • Update: Columbus, Ohio (First reported 4/12/17): An officer was fired for kicking a suspect in the head while the suspect was pinned on the ground by another officer. ow.ly/934L30dzdY3
  • El Paso, Texas: An officer was placed on leave after he was arrested for negligent homicide for the bathtub drowning death of his infant. ow.ly/f9hc30dzep5
  • Newark, New Jersey: Two officers were disciplined for unrelated misconduct. One was suspended after he punched a subdued suspect; the other was reprimanded for causing $300 in damage to a prosecutor’s door in a fit of anger. ow.ly/TSYK30dzn2z
  • Update: Niagara County, New York (First reported 3/8/16): The County will pay the family of a man killed in a crash caused by deputy $2,750,000. The now-former deputy pled guilty to three moving violations and was ordered to pay roughly $500 in fines. ow.ly/2sdZ30dzSPy
  • Dawson, Georgia: An officer was arrested for pulling a gun on someone during an off-duty altercation. ow.ly/ZSNw30dzV7p
  • U.S. Customs and Border Protection: An officer pled guilty to an interstate marijuana smuggling conspiracy. ow.ly/5DTe30dzVVy
  • Update: El Paso County, Colorado (First reported 9/6/16): The now-former sheriff was acquitted of three of seven tampering and misconduct charges. The jury deadlocked on the remaining four charges. ow.ly/WvfS30dA3FD

National Police Misconduct Newsfeed Daily Recap 7/11/17

Here are the eight reports of police misconduct tracked for Tuesday, July 11, 2017:

  • Update: Baton Rouge, Louisiana: The City faces another federal lawsuit filed by protesters who were arrested following the Alton Sterling shooting ow.ly/RDNJ30dxltO
  • St. Johns County, Florida: A deputy was arrested for domestic battery for allegedly punching a woman in the face. ow.ly/iqx330dxqr3
  • Update: Tulsa, Oklahoma (First reported 8/20/14): A now-former officer’s third trial for killing his daughter’s black boyfriend ends in mistrial. ow.ly/UH8d30dxrnY
  • Alachua County, Florida: A deputy had his child abuse charge dropped, but he was fired for the incident. ow.ly/7WmX30dxt9b
  • New York, New York: An officer was arrested for biting and choking his wife. The report notes he has prior arrests including DUI and child endangerment. ow.ly/9adz30dxAb3
  • Update: St. Anthony, Minnesota: Officer Yunez, the officer who fatally shot Philando Castile, has accepted $48,500 severance to leave the department. ow.ly/aL4P30dxT5v
  • Update: Lantana, Florida (First reported 3/6/17): An officer pled guilty to distributing obscene material and resigned after sending pornographic material to teens. ow.ly/eWI130dy42A
  • Chicago, Illinois: The police are being sued by a man who claims he was incorrectly included in a gang database, making him unfairly excluded from getting DACA status. ow.ly/QerR30dyf3Q

National Police Misconduct Newsfeed Daily Recap 7/10/17

Here are the nine reports of police misconduct tracked for Monday, July 10, 2017:

  • Fall River, Massachusetts: An officer was arrested for assaulting a female family member and also charged with six counts of improper storage of firearms ow.ly/o0Ws30dtXJW
  • Update: Horry County, South Carolina (First reported 4/6/16): A detective will reject proposed plea deal for sexually assaulting crime victims. ow.ly/Tl0W30dtY9P
  • McClain County, Oklahoma: A deputy was fired after he was arrested for reckless driving. He was caught drag-racing at 128mph while off duty. ow.ly/WUGR30dtYqG
  • Aurora, Illinois: An officer was suspended and charged with electronic harassment for improperly accessing law enforcement database information. ow.ly/x9IO30dtYE9
  • Update: Lorain, Ohio (First reported 11/16/16): The City agreed to pay $35,000 to a suspect that was punched by a police officer at the home of the officer’s ex-girlfriend. The suspect was acquitted of the charges. The officer was suspended for 10 days. ow.ly/vA6330dtYMv
  • Nogales, Arizona: An officer who was arrested for DUI after a crash remains on duty. Critics allege a double-standard in the case’s handling. ow.ly/sfxD30dtZaS
  • Roswell, Georgia: A detective was suspended 30 days for showing up to firearms training course with alcohol in his system. ow.ly/lBL430dtZom
  • Pasco County, Florida: A deputy who also served as an SRO was fired for sending inappropriate sexual messages to students via social media. The prosecutor does not believe those messages constituted a crime, but the now-former deputy will be charged for illegal access of a law enforcement database. ow.ly/pIxJ30dtZxm
  • Albuquerque, New Mexico: An officer was fired after being charged with DUI after a hit-and-run. ow.ly/yns330dtZFK

National Police Misconduct Newsfeed Daily Recap 7/7/17

Here are the nine reports of police misconduct tracked for Friday, July 7, 2017:

  • Update: Newcomerstown, Ohio (First reported 4/19/17): A now-former officer was indicted for lying about being shot in the line of duty and forging documents for benefits. ow.ly/sFkS30dqZgA
  • Dallas, Texas: The officer who fatally shot Genevive Dawes was among three officers fired for unrelated incidents by the interim chief. One officer was fired for causing an auto accident and failing to stop to render aid and the last officer was fired for beating a child with a surge protector while off duty. ow.ly/K4KJ30dqZH6
  • Vandergrift, Pennsylvania: An officer was charged with assault and harassment for an off-duty incident with a 14-year-old boy ow.ly/Vh1O30dr1Za
  • Update: Pasadena, California (First reported 2/22/17):  An officer is being investigated for illegal firearms dealing. A federal search warrant was served on his home, but no charges have yet been filed. ow.ly/M7Ye30dr2mt
  • Green Bay, Wisconsin: An officer was charged with forgery for signing his ex-wife’s name on a car title without her consent. ow.ly/V7fr30dr2Q8
  • Bellevue, Nebraska: A detective was arrested along with his wife following a domestic dispute. ow.ly/ppB330drN3B
  • Del Rio, Texas: An officer was arrested on a misdemeanor theft charge. ow.ly/mC0130drNls
  • Mahoning County, Ohio: A deputy accepted a plea deal and dropped the appeal of his termination after he was allowed to resign. He plead guilty to misdemeanor OVI and weapons charges. The lesser charges will leave him eligible for future law enforcement employment.  ow.ly/gr9630drTIQ
  • Update: Baltimore, Maryland: Three officers were indicted on additional charges of burglary following February racketeering indictments with several other officers. ow.ly/96WH30ds1Nv