James Craven is a legal scholar with Cato Institute’s Project on Criminal Justice. His work is focused on keeping public officials accountable for misconduct and defending the right to a trial by jury. Craven is a former trial attorney who managed a criminal defense practice for several years in North Carolina. Prior to joining Cato, James served as Acting Director of Reason Foundation’s Criminal Justice Reform Policy Team, where he helped engineer North Carolina’s recodification commission and published several studies on the impact of fines, fees, and license suspensions. Craven received his J.D. from Georgetown University Law Center in 2013.

Police walked up to this Georgia citizen and broke his wrist. Their casual indifference is terrifying.

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.

Full video is available at Valdosta Daily.

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.

Bizarre rant from FLEOA demands to know how officers will avoid suits for sexual misconduct after we #AbolishQI

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”?

FLEOA's lead negotiator
Ah, yes. I get it now. Credit to David Willis of shortpacked!

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.

JUSTICE Act Fails To Address Qualified Immunity, But Many Republicans Are Still Interested

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 “tripartisianEnd 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.”

Lindsey Graham (R-SC)

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.

Fourth Circuit Judge Criticizes Qualified Immunity

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

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.

Players Coalition backs Qualified Immunity repeal

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.

The letter remarks on several cases where qualified immunity has been used to excuse egregious allegations of misconduct:  

The 8th Circuit applied it to an officer who wrapped a woman in a bear hug, slammed her to the ground, and broke her collarbone as she walked away from him. The 9th Circuit applied the doctrine to two officers who allegedly stole $225,000 while executing a search warrant. The Eleventh Circuit applied the doctrine to protect an officer who unintentionally shot a ten-year old while firing at the family dog (who, much like the child, posed no threat).

Excerpt from Players Coalition petition in support of the Ending Qualified Immunity Act (case links added)

The enormous list of names behind the petition adds to a growing chorus of voices calling for the life-threatening doctrine of qualified immunity to be abolished. You can read more about these cases, as well as the full text of the Players Coalition petition, below.