Most people would agree that police officers shouldn’t be punished for split-second mistakes in judgment.  That’s why the Graham and Garner tests for whether or not an officer’s use of force amounts to a constitutional violation require an analysis of whether that use of force was reasonable with regard to the particular circumstances the officer was in.  

But qualified immunity goes beyond Graham and Garner with its maddeningly arbitrary “clearly established law” requirement.  In effect, “clearly established law” adds a separate, completely illogical burden of proof to constitutional torts cases: proving the existence of a prior case with functionally identical facts.  To illustrate how this works, consider the case of Amy Corbitt.  Officer Vickers, in pursuit of an unrelated criminal suspect, showed up in Amy Corbitt’s yard where children were playing.  After making everyone lie down on the ground, Officer Vickers—under no provocation whatsoever—shot at Amy’s dog, missed, and hit her child instead.  Very clearly, Officer Vicker’s use of force was unreasonable under the tests of Garner and Graham.  But since there wasn’t a prior court case where an officer shot at a harmless dog, missed, and then hit a child, Officer Vickers was granted qualified immunity and Amy Corbitt wasn’t allowed to take him to trial for the injury to her child at all.

The theoretical justification for this absurd outcome is that without the clear guidance of existing case law, public officials would not be able to discern what conduct is permissible under the plain text of the Constitution.  There are a lot of flaws with this reasoning, but a new article from Joanna Schwartz, a UCLA law professor and leading scholar of qualified immunity, has identified a particularly damning one: police officers don’t study “clearly established law” at all.

Professor Schwartz combed through 284 Supreme Court and Ninth Circuit cases involving excessive force claims, and then compared them to the actual training received by California police officers.  What she found: 95% of agencies rely on the same company to develop the use-of-force guidelines in their policy manuals,  which teach officers the “reasonableness” tests of Graham and Garner but provide scant or no instruction on the subsequent holdings that form the body of “clearly established law.” The other 5% fare little better.  Likewise, California’s POST training—required by all California law enforcement officers—sticks firmly to Graham and Garner and barely mentions any of the 284 cases that create the body of “clearly established law.”

The full article goes on to examine police training in far greater detail, including in-service police training and police training courses available at community colleges.  Professor Schwartz’ conclusion is that the “clearly established law” standard serves no meaningful purpose in educating officers about the appropriate use of force—and that the arbitrary standard of qualified immunity should be eliminated.

Her article thus provides solid empirical support for what was already a commonsense intuition: police officers never learn “clearly established law.” As Judge James Browning of the District of New Mexico wrote in a 2018 opinion:

The Supreme Court’s obsession with the clearly established prong assumes that officers are routinely reading Supreme Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these qualified immunity cases with the circumstances they confront in their day-to-day police work. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. It is far more likely that, in their training and continuing education, police officers are taught general principles, and, in the intense atmosphere of an arrest, police officers rely on these general principles, rather than engaging in a detailed comparison of their situation with a previous Supreme Court or published Tenth Circuit case. It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?

As we’ve argued in the past, eliminating qualified immunity wouldn’t change the fact that Garner and Graham protect police from the consequences of good-faith mistakes made in dangerous, volatile encounters.  Now we know it would also bring the state of the law in line with what officers are actually being taught about the legal boundaries of the use of force—which is almost exclusively Graham and Garner.  

Joanna Schwartz’ full article is available here.

A forthcoming law review article from Professor Katherine Crocker of William and Mary Law School endorses eliminating qualified immunity, which protects individual public officials from lawsuits alleging a violation of constitutional rights (§ 1983 claims).  But it also suggests going one step further: eliminate the Monell doctrine and expand § 1983 to let people sue government entities as well. 

The current mechanisms for constitutional tort claims against government entities are complicated.  In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court ruled that municipal government entities could be sued under § 1983.  But these claims must survive a difficult test known as the Monell doctrine, which usually requires the plaintiff prove that the constitutional violation was part of an agency “custom or practice.”  Courts have set the bar for this threshold particularly high, which means the Monell doctrine is often as daunting for plaintiffs attempting to sue local governments as qualified immunity is for plaintiffs attempting to sue individual public officials.

But Monell doesn’t apply to state governments or federal government entities, because both are protected by sovereign immunity—which protects these entities from being sued at all.  The author notes that the iron wall of sovereign immunity is, like qualified immunity, a barrier of the court’s creation.  Historically, government actors subject to tort claims could raise as a defense that their conduct was legally authorized as part of their government work.  But the existence of a constitutional violation overcame this defense.

Professor Crocker recommends cutting through both the Monell doctrine and sovereign immunity by expanding § 1983 claims against individual public officials to also allow claims against the public official’s employing government entity under a theory of respondeat superior—the well-known legal test that says an employer may be held jointly and severally liable for the tortious acts of his employee when the latter is acting within the scope of their employment duties.  Notably, Senator Tim Scott recently proposed holding police departments liable for rights violations committed by their working officers.  But as Professor Crocker stresses in her upcoming article, individual liability would be a necessary component of any such reform.

Putting government entities on the line for constitutional torts committed by errant officials may seem like a major shift.  In reality, though, evidence suggests government agencies already indemnify their employees in almost every constitutional tort action.  And plaintiffs frequently sue government agencies through different vehicles anyway to get access to important information in discovery, like internal police department policy.  But even the possibility of personal liability still has a major impact on the behavior of individual employees, as evidenced by the response to New York City’s recent qualified immunity reform.  Crocker predicts that “the most likely consequence” of increasing entity liability “would be for governments to increase their insistence that individual officers help pay constitutional-tort costs in exceptionally egregious cases.”

Combining a repeal of qualified immunity with an expansion of § 1983 that incorporates government employers through respondeat superior thus mirrors existing functional practice in a way that allows plaintiffs to enforce their constitutional rights without first swimming through labyrinthine immunity doctrines.  This has a few distinct advantages.  First, it prevents constitutional tort suits from getting mired in interlocutory appeals.  Because the determination of whether immunity doctrines apply is a final judgment, government attorneys can (and do) grind § 1983 cases to a halt by demanding an appellate court review whether some form of immunity should apply before the case goes forward.  Now plaintiffs would not have to wait years for circuit courts to weigh in before taking the government to trial—or make distorted tactical decisions on who to sue based solely on who has a right to an interlocutory appeal.

Additionally, these reforms would make the government’s role indemnifying their employees more transparent.  Government attorneys are fond of asserting, for strategic reasons, that indemnification is unlikely to occur and litigation can have ruinous effects on personal lives despite knowing full well that their agency committed to covering litigation costs in their employment contract.  Holding the government entity liable upfront would make clear that the plaintiff can obtain a complete remedy without forcing an individual officer into bankruptcy while putting the government agency in control of the decision to seek remuneration from its employee or not.  To help this consequence achieve its full effect, Professor Crocker recommends legislation preventing federal agents from settling constitutional tort claims against them as if they were made under the Federal Tort Claims Act.  This is a common practice, because it allows the Department of Justice to indemnify the government agency and obscure who is responsible for committing rights violations when balance sheets are reviewed.

It’s important to note that while Professor Crocker believes these reforms should eventually encompass all constitutional torts, she recommends beginning with just Fourth Amendment excessive force claims.  The goal of this limitation is purportedly to allow Congress more time to monitor the effects of these changes and, in the author’s words, realize that “there is less reason to fear entity liability than many may suppose.”  But this approach risks squandering appetite for change at a time when local governments are already enacting more ambitious reform.  New York City, for instance, recently established a cause of action for both excessive force claims and unlawful search or seizure claims.  That reform also strips both police officers and their departments of immunity defenses, creating something similar to the joint and several liability the author endorses but covering a wider range of constitutional misconduct.  And Colorado and New Mexico both go even further, with statutes that provide remedies for all constitutional violations.

The full article is available here.

This Wednesday, Reuters will be hosting a free video panel where the most influential scholars in qualified immunity jurisprudence will be debating the doctrine’s future as Congress considers dramatic reform.  The panel includes Cato Institute’s own Jay Schweikert, author of Qualified Immunity: A Legal, Practical, and Moral Failure; Andrew Chung, author of Reuter’s groundbreaking study of how qualified immunity impacts excessive force cases; Scott Keller, one of the most prominent academic defenders of qualified immunity; and the NAACP Legal Defense Fund’s Mahogane Reed—amongst others.

You can register for the event, which takes place at 12 EDT this Wednesday, by following this link.

The New York City Council passed landmark legislation last week that will allow citizens to sue police for violations of their Fourth Amendment rights. The bill awaits the signature of Mayor de Blasio, who has indicated support for the measure.

New York is the first city to pass legislation that would allow citizens to sue police officers for excessive force or unlawful searches and seizures without first overcoming the high hurdle of qualified immunity. The NYPD is the largest municipal police force in the United States, underscoring the wide reach of the landmark legislation.

Police reform efforts have gathered steam in the United States, with all eyes on the trial for Derek Chauvin, the former police officer accused of killing George Floyd. But criminal prosecutions of police officers for excessive force are exceedingly rare, causing many to conclude that the best way to keep police accountable for unlawful acts is to allow citizens to sue police forces for damages.

Even so, the Supreme Court has stubbornly refused to reconsider its qualified immunity doctrine, which prevents the majority of lawsuits against officers for excessive force from going to trial. And while some members of Congress are working on eliminating the doctrine, many local governments aren’t waiting to see if they succeed. Instead, they’re introducing legislation that creates a path around the qualified immunity roadblock by establishing a local cause of action. 

The NYC bill works the same way: it adds a new chapter to the NYC Administrative code, which establishes a local right to be free from excessive force and unreasonable searches and seizures. This right is designed to mirror the Fourth Amendment, and the legislation calls for it to be interpreted the same way. But it also allows citizens to sue police for the deprivation of that right, while explicitly providing that “qualified immunity or any other substantially equivalent immunity” will not shield officers from responsibility. 

It’s not just individual police officers who are held accountable, either. The reform measure takes the major step of holding officers and their departments liable for violations of a citizen’s Fourth Amendment rights. Effectively, this creates two layers of accountability. First, police officers are incentivized to avoid misconduct so they don’t find themselves the target of litigation. But police departments also have to be wary of employing cops with poor track records, since they’re ultimately on the hook for any damages those officers cause. The upshot is that it will be increasingly costly for the NYPD—or, more precisely, New York taxpayers—to employ substandard officers who generate a disproportionate number of damages claims though their serial misconduct. 

That provision also helps ensure victims of police misconduct have a complete remedy: if the officer isn’t able to pay for the damage caused, aggrieved individuals can also seek compensation from the officer’s employer. The bill also provides that prevailing plaintiffs may seek both attorney’s fees and punitive damages. It’s even possible to sue in equity: thus, if a police officer took a valuable keepsake while searching someone’s house, a person can sue to have the specific item returned instead of just the item’s monetary value.

The final provision of the bill requires the city to keep records that will allow the policy’s success to be measured. As the home of our nation’s largest municipal police force, New York’s new law sets a tremendous example for other cities to follow.

It wasn’t Prince McCoy who chucked water at prison guard Tajudeen Alamu. So why did Alamu walk up to McCoy’s cell and deploy a chemical spray on his face and body? According to McCoy, Alamu knew where the prisoner who threw water at him was. But the prisoner, Jackson, had put up a bedsheet so Alamu couldn’t spray him. Frustrated, Alamu walked up to McCoy’s cell and asked him for his name and prison number. As McCoy approached to comply, Alamu attacked him with pepper spray “for no reason at all.”

The Fifth Circuit found that “McCoy’s adequately supported view of the facts… demonstrates a constitutional violation.” But it nonetheless granted summary judgment for Alamu, because while many other unprovoked attacks by state officials had been found to be constitutional violations, “it wasn’t beyond debate that Alamu’s single use of spray” violated clearly established law. The opinion generated a dissent, which criticized the circuit’s decision to grant immunity solely because “the guard used pepper spray instead of a fist, taser, or baton.”

Today, the Supreme Court vacated and remanded that decision for “further consideration in light of Taylor v. Riojas.”  Taylor was another case that reached the Supreme Court from the Fifth Circuit.  In that case, the Fifth Circuit had held that a prisoner forced to remain in a cell “teeming with human waste” for six days could not sue his captors because the Court hadn’t previously found a constitutional violation when someone was held in those conditions for “a time period so short.” The Supreme Court summarily reversed, reasoning that “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions.”

The Supreme Court’s remand suggests that it may want the Fifth Circuit to embrace the rule that the law is clearly established when “no reasonable officer” could believe their misconduct to be constitutional.  Taylor and McCoy are both cases where the Fifth Circuit granted qualified immunity to state officials because plaintiffs could not dredge up a prior case with functionally identical facts.  In asking the Fifth Circuit to reconsider McCoy in light of Taylor, the Supreme Court appears to be reasserting that these narrow, fact-matching exercises should be set aside in cases where an official’s misconduct is plainly unreasonable.

Virtually no one could watch the video of Tony Timpa’s death and come away with the impression that the officers had committed anything less than a grave moral injustice. Tony’s death was not the result of some split‐​second, tragic misjudgment in the middle of a chaotic conflict: he died because the five police officers who responded to his call were more interested in acting like the toughest kid at summer camp than doing their professional duty to help a person in need. Yet a lawsuit from Tony’s surviving family members demanding justice for his death was blocked by a federal district judge’s decision that the officers were immune from civil suit. The Cato Institute filed an amicus brief last Friday urging the Fifth Circuit to reverse the district court’s decision and allow the case to proceed to trial.

As we argue in our brief, the ill‐​defined qualified immunity standard is regularly misconstrued by lower courts in ways that put even the most reprehensible police behavior beyond reproach. The result is rapidly declining public confidence that makes police work more difficult and good talent harder to recruit.

At the same time, department and municipal leaders face few repercussions for failing to replace unfit officers as courts become ever‐​more willing to invent excuses for third‐​rate recruits. Four of the officers present at the scene of Timpa’s death remain on active duty with the Dallas Police Department, and the fifth retired at age 50. It’s not just Texas: examples abound of police killing Americans through prone asphyxiation, and there’s no telling how many cases go unreported because police departments successfully conceal them—as Dallas did for three years in Timpa’s case.

Last night, Justice Ruth Bader Ginsburg passed away due to complications from cancer.  Justice Ginsburg, the second woman appointed to the Supreme Court, became well-known late in her career for authoring and joining in many poignant dissents.  She was also a known skeptic of the qualified immunity doctrine.

Justice Ginsburg joined the dissent in Kisela v. Hughes, a case where a police officer who shot a woman four times because she was holding a kitchen knife was granted qualified immunity.  The dissent criticized the doctrine as an “absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”

The late justice’s voice will be missed be many.  

Police broke down the door of Georgia resident Onree Norris with a battering ram.  Officers threw several flash grenades before entering.

Norris, 79, was visibly shaken and confused.  Just outside the house, Lieutenant Marlow turned to Officer Hicks and asked: “what are they doing over there?”

“I have no clue,” Hicks responded, according to his deposition.

The police had the wrong house.  But what is most appalling about this incident is how obviously wrong they were.  The warrant police had obtained described an off-white house with a black roof, and depositions revealed police had already done a drive by of the correct location.  Norris’ home was a yellow house with a grey roof—with a separate driveway, mailbox, and address.

Worse, officers were still deliberating over whether or not it was the right location as they broke down the door.  “This house?” asks one of the deputies, staring at the house described in the warrant.  But other officers were already entering Norris’ home.

A suit by Norris to recover emotional distress and property damages fell on deaf ears with the Federal District Court, which granted summary judgment to the officers for an all-too-familiar reason: qualified immunity.  “What it’s morphed into is almost absolute immunity for law enforcement officers,” remarked Norris’ attorney, Darryl Scott, on the doctrine.  Norris has appealed his case to the Eleventh Circuit Court of Appeals.

As the depositions from Norris’ suit make clear, the police officers had all the information they needed to effect their search on the right house.  It would have only taken a moment of diligence to avoid the harm they wrought on Norris’ home and his person.  But because qualified immunity shields public officials from the consequences of their actions, they have little reason to think twice before breaking down the door of the wrong house.  Nor is there much incentive for police departments to train their staff to be meticulous and certain in carrying out searches and seizures.  Even if they get it wrong, the unfortunate homeowner will be the one stuck paying for the cost of their mistakes.

An article published Thursday in The Wall Street Journal’s Life and Arts section centers its sights on qualified immunity, criticizing the doctrine for making government “unaccountability the norm and accountability the hard-won exception.” The article comes from ACLU legal directors Scott Michelman and David Cole. 

The ACLU and Cato Institute regularly collaborate on cross-ideological amicus briefs challenging the qualified immunity doctrine before the Supreme Court. One such case, Baxter v. Bracey, is highlighted in the article. Michelman and Cole speculate the Supreme Court may have denied certiorari in Baxter and other cases due to the emergence of potential legislative solutions.

It also challenges a common argument advanced by the doctrine’s supporters: that abolishing qualified immunity would make it difficult for public officials to do their jobs due to the fear of being sued. The reality is that the government pays the bill for errant employees in 99.98% of cases. By preventing these cases from going forward, qualified immunity actually shields the government from the costs of violating people’s constitutional rights – and eliminates the incentive to implement systemic changes that would prevent those violations from occurring.

Wall Street Journal subscribers can read the article here.

The Eighth Circuit granted summary judgment to a police officer accused of kneeing Iowa resident Charles McManemy in the head twenty to thirty times, ruling that the conduct was protected by qualified immunity.  McManemy had sought recovery for damage to his eye, including vision impairment.

Police believed McManemy was delivering drugs, and turned on their sirens for him to pull over.  But McManemy led police on a high speed chase across Grundy County, Iowa before eventually surrendering after police rammed his vehicle.  McManemy left his car and lay face down on the road with arms and legs spread.

From there, the officers and McManemy tell two tales.  The dash cam footage clearly shows Officer Tierney kicking and stomping McManemy’s leg, but the view is then obscured behind another officer.  According to the police, McManemy resisted and they struggled to get him into handcuffs, but did not know what had caused the injury to his eye.  McManemy claims what the officers interpreted as resistance was an involuntary response to their use of a taser, and that Officer Tierney then kneed McManemy in the face twenty to thirty times.

The court is required to accept the facts as presented by the non-moving party at the summary judgment stage.  Although the Eighth Circuit analyzed the facts as though Officer Tierney had caused McManemy’s injury, it distinguished the circumstances from another case where an officer injured an arrestee by kneeing him in the head in part because McManemy “put up some resistance once captured.”  In doing so, the court appears to endorse the police’s version of the facts, precluding debate on whether McManemy had in fact resisted arrest once he left his vehicle and granting summary judgment for Officer Tierney in spite of a key issue of fact remaining disputed between the parties.

The case also continues an unfortunate trend of decisions that require law be “clearly established” in an exceedingly narrow manner.  Despite McManemy showing a prior case where another arrestee was injured by police in a near-identical manner being held as excessive force, the court still distinguished his case on minute details – some of which were contested by the parties – in order to conclude that the law was not yet settled regarding whether Officer Tierney’s actions could constitute excessive force.

Judge Stephen Grasz, who was appointed to the Eighth Circuit by President Trump in 2017, wrote a scathing dissent in which he notes that “a jury could find that Tierney struck McManey’s face when he…. offered no resistance.”  Quoting Eighth Circuit precedent, Grasz asserts that “‘when a person is subdued and restrained with handfcuffs, a gratuitous and unnecessary act of violence …violates the Fourth Amendment.’”

McManemy’s case is yet another illustration of how qualified immunity makes it extraordinarily difficult for citizens to hold public officials accountable for their actions.  And in granting summary judgment while McManemy still disputed facts central to the holding, the Eighth Circuit highlights another failure of the doctrine: its subtle corrosion of the safeguards of civil procedure. 

There’s little doubt about how Hirschell Fletcher died.  Homeless on the streets of Dallas, Texas, Fletcher was assaulted, robbed, and beaten in the head.  Bystanders called for help, and paramedics Kyle Clark and Brad Cox responded.  But Clark and Cox didn’t help Fletcher.

They ridiculed him.

Body camera footage shows Clark and Cox laughing at Fletcher for upwards of 15 minutes.  Fletcher was bleeding from his forehead and begging for help.  Instead of providing medical attention, the paramedics turned Fletcher over to police to be arrested for public intoxication.  Fletcher wasn’t drunk, and no assessment of his sobriety was ever made.  He died alone in a jail cell, two hours after the assault occurred.

Both paramedics attempted to claim they never met Fletcher.  That failed, spawning a criminal prosecution for falsifying documents.  The men managed to sneak by with a slap on the wrist: two years of probation.  But they could still be liable in civil court.  Fletcher’s family has sued Clark and Cox for denying Hirschell medical treatment, a fact they can no longer easily deny.

Legal documents obtained by Cato Institute reveal Clark and Cox have found a new strategy to escape accountability for Fletcher’s death: qualified immunity.  The defense, if accepted by Federal District Court Judge Ada Brown, would prevent the case from ever going to trial.

“In that plaintiff cannot meet their burden to defeat Clark and Cox’s defense of qualified immunity, Clark and Cox are entitled to dismissal of each of the Plaintiff’s claims against them with prejudice,” the men say in their brief for dismissal.  Attorneys for Fletcher’s estate have vigorously contested the errant paramedics’ attempt to evade trial.  Judge Brown has not yet ruled on the motion, but a decision is expected in the coming months.

Police abuses enabled by qualified immunity often make headlines, but the needless death of Hirschell Fletcher is a stark reminder that the doctrine is available as a defense to all public officials who violate people’s rights.  Fletcher deserved paramedics who take their oath seriously, and America deserves public servants who are held to higher standard.  It’s time for qualified immunity to go.

Jude Joanis contributed research for this piece.

Antonio Smith wasn’t the man these cops were looking for, but as they pulled up to him alongside a lonely highway in Georgia, he was anxious for good reason. Mere moments after taking his driver’s license, Valdosta police slammed him onto the ground and broke his wrist.

Warning: this video is a tough watch.

The casual indifference with which these officers approach and subsequently grievously injure Mr. Smith is terrifying. They order him to put his hands behind his back while holding him firmly in a bear hug, then take him down anyway. 

The incident is another heavy blow for the State of Georgia, which recently hit national headlines after the fatal shooting of Rayshard Brooks. While the injury is less severe, the new video also leaves less room for doubt compared to the frantic chase in Atlanta. Multiple officers watch with utter detachment as a compliant Smith is grappled from behind and brought down. It speaks to a mindset completely divorced from a world where actions have consequences.

Because of qualified immunity, there may not be any.

Mr. Smith has sued the officers under §1983 for excessive use of force. Cato obtained a copy of the complaint, which already anticipates that qualified immunity will be used as a defense by the officers. We agree with his attorney’s assessment that the doctrine “delays resolution of the case on the merits by engendering needless motions and pointless interlocutory appeals.” Unfortunately, it often does more than simply delay: qualified immunity is designed to deny people like Mr. Smith any relief outright.

The widely-shared video has turned up pressure for Congress to intervene by abolishing qualified immunity and restoring the means by which people like Mr. Smith can hold bad cops accountable. Let’s hope they are watching.

The Federal Law Enforcement Officers Association put forward a rambling, nonsensical defense of qualified immunity in The Hill yesterday.  The article starts tamely enough, with a classic misexplanation of the doctrine.

When determining whether [a law has been clearly established], courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.

Nope.  Courts never use a reasonable person test to determine if a law was clearly established: they consider whether a previous case already held near-identical conduct unconstitutional, a standard rarely set since courts can dismiss cases for qualified immunity without answering that question.  It works a little like this.

But the FLEOA’s strawman is the last part of their argument that appears to be written by a sane and sober individual.

Bizarrely, the FLEOA invokes a sexual misconduct allegation against a police officer that never got past the initial complaint.  Sherita Dixon-Cole accused Officer Hubbard of groping her during a DUI stop – an accusation quickly refuted by Hubbard’s dash cam footage.  FLEOA goes on to say that the woman’s complaint, which was shared widely on social media, “led to a conviction of the officer in the court of public opinion.”

Qualified immunity is a legal defense – not a defense that can be asserted on twitter.  And as happened here, there are several stages built in to every civil trial to quickly weed out false allegations like these.  Determining the truth of contested matters is a purpose of the trial itself.  If the FLEOA wants to use a single complaint to crudely color a case for the doctrine, ignoring the volume of cases illustrating otherwise, you’d think they would pick one that involves qualified immunity. 

It only gets worse as FLEOA attempts to connect the dots.

Had this case gotten to the point of a lawsuit, if the trooper’s conduct was found to be unconstitutional or unethical, he may have been left exposed by his agency to any legal ramifications from that unethical conduct. 

Hold the phone. 

So if this were a totally different case where the officer was actually sued because he actually groped a woman at a DUI stop – he might be “exposed” to “legal ramifications from that unethical conduct”?

The kicker for FLEOA’s insane troll logic is that it’s not wrong.  It just seems to be literally arguing that officers need qualified immunity to protect them from being sued for sexually abusing people they detain at traffic stops.  That is what qualified immunity does – and why it should be abolished.

The article wraps up with the flair of a hastily-written high school history essay.

This example speaks to the need for qualified immunity, especially since all lawyers know how to file lawsuits and their actions are not bound by an investigation.

I’m not sure which part of this grand finale speaks to me more – the disjointed “what we just said proves our point,” or the bonus argument that officers may be vulnerable because another profession is capable of doing its job.

Today, Senate Republicans unveiled the JUSTICE Act, the party’s police reform legislation.  The bill contains new accountability procedures, using a swath of carrot-and-stick measures to make departments comply with proposed no-knock warrant reporting requirements, ensure body cameras remain on during arrests and detentions, prevent the falsification of police reports, and retain law enforcement records. 

But for conservative-backed legislation with such a focus on accountability, there is an obvious and glaring omission — unlike the Amash-Pressley bill in the House or the Democrats’ Justice in Policing Act, the JUSTICE Act does nothing to eliminate or even address the doctrine of qualified immunity. The bill introduces several mechanisms geared at incentivizing police departments to police themselves, but it ignores entirely the cornerstone of our near-zero accountability policy for law enforcement, which is qualified immunity. By rewriting our primary federal civil rights law to protect officials who violate people’s constitutional rights, the Supreme Court severely undermined both the deterrent and remedial effects of that statute. Until and unless Congress fixes the Court’s mistake, these other “accountability” measures will ring hollow, because police officers will still be able to violate them with impunity.

Nevertheless, while it’s certainly discouraging that the Republicans’ initial bill did not address qualified immunity, it’s also clear that many members of the caucus are keenly aware of the problem. In the House, Representative Justin Amash (L-MI) made waves with the “tripartisian” End Qualified Immunity Act, which is co-sponsored by Tom McClintock (R-CA). Also, Will Hurd (R-TX), a former CIA officer, recently published an op-ed saying that Congress needs to “[c]larify federal law to ensure officers can be held accountable in court for violating civil rights,” noting how qualified immunity “often shields abusive officers.”

In the Senate, many other Republicans have already telegraphed a willingness to address qualified immunity. A couple weeks ago, Rand Paul (R-KY), while discussing an anti-lynching bill, proposed that Congress “could immediately consider addressing qualified immunity and ending police militarization.” Mike Lee (R-AZ) suggested at yesterday’s Judiciary Committee hearing that Congress “should consider making changes to qualified immunity,” correctly noting that the “clearly established law” standard isn’t currently working.  Senator Lindsey Graham (R-SC) has expressed interest in reconsidering qualified immunity, noting that “[i]f you’re subject to being sued, you act differently than if you’re not. Let’s take a look at it.” And Mike Braun (R-IN) has also begun talking with his caucus about abolishing the doctrine, declaring its time for his party to show that when it comes to police reform, they “mean business.”

As the legislative process continues to unfold over the coming weeks, qualified immunity must be a top legislative priority — especially because the Supreme Court has demonstrated its unwillingness to fix the very mess that it made. But even though the current version of the JUSTICE Act fails to address qualified immunity, there are definitely lots of Republicans who realize just how much this lawless doctrine contributes to our culture of near-zero accountability for law enforcement.

Today, Senate Republicans unveiled the JUSTICE Act, the party’s police reform legislation.  The bill contains new accountability procedures, using a swath of carrot-and-stick measures to make departments comply with proposed no-knock warrant reporting requirements, ensure body cameras remain on during arrests and detentions, prevent the falsification of police reports, and retain law enforcement records. 

For conservative-backed legislation with such a strong focus on accountability, the absence of qualified immunity may appear to be a curious omission.  The JUSTICE Act introduces several mechanisms geared at incentivizing police departments to police themselves through a centralized, push-pull of government funds.  But it does not restore the cause of action created by §1983 of the Civil Rights Act, which kept public officials accountable for actual misconduct by empowering citizens to recover damages for violations of their constitutional rights.  Or at least, not yet.

The reality is that Republicans have the doctrine in their sights.  While Representative Justin Amash (L-MI) made waves with the bipartisan End Qualified Immunity Act, many more conservatives are expressing interest in abolishing QI.  Senator Mike Lee (R-AZ) referred to it as a “judge made doctrine” ripe for congressional intervention, and is reviewing data from states that have unilaterally repealed the unfounded defense.  Senator Lindsey Graham (R-SC) and Senator Sheldon Whitehouse (D-RI) have been looking at pairing qualified immunity reform with liability insurance, to ensure that officers don’t risk defaulting on their mortgage due to snap-second misjudgments.  And Mike Braun (R-IN) has also begun talking with his caucus about abolishing the doctrine, declaring its time for his party to show that when it comes to police reform, they mean business.

The JUSTICE Act could prove the perfect vehicle for restoring the right to recover from constitutional misconduct.  The government-mandated record requirements would ensure plaintiffs can prove their case in court when police officers or other public officials violate their rights.  Coupling this with liability insurance requirements would result in departments, rather than individual officers, being held responsible for police misconduct.  Officers like Derek Chauvin, who had 18 complaints against him prior to the devastating death of George Floyd, might get the boot after the first lawsuit.

Judge James Wynn Jr. took to the Washington Post’s opinion pages to criticize qualified immunity yesterday.  The scathing op-ed remarks on how qualified immunity “prevents plaintiffs from pursuing their claims, gives officers little guidance on the contours of individuals’ rights and excuses ever more egregious conduct from liability.”

It’s rare to see a sitting appellate court judge speak out so openly against a legal doctrine, but qualified immunity is an exceptional mistake with an extraordinary cost.  Judge Wynn’s frank assessment that qualified immunity is a “defense unmoored” from a proper legal foundation contributes a valuable voice to the growing chorus of legal scholars opposed to the doctrine.  Framed by the unconscionable killing of George Floyd, the opinion brings in to sharp relief the cost of refusing to the correct the high Court’s error.

Read the full opinion on the Washington Post

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.

Justin Amash and Ayanna Pressley have introduced bipartisan legislation that would end qualified immunity.  And today, their bill received an enormous outpouring of support from 1,400 current and former pro athletes, coaches, and managers from across the NFL, NBA, and MLB.

Continue reading “Players Coalition backs Qualified Immunity repeal”

Tomorrow, the Supreme Court will decide whether one or more of the ten cases challenging qualified immunity will go forward.  And on Tuesday morning, that decision will be released to the public.

The facts of these cases speak for themselves: whether it’s shooting a child in the leg or filling a home with tear gas, public officials have used qualified immunity as a shield to deny injured parties the right to recovery.  Read about the four biggest cases here:

Baxter v. Bracey

Corbitt v. Vickers

West v. Winfield

Zadeh v. Robinson