Qualified Immunity; What It Is and What It Isn't.

 

Qualified Immunity: What It Is and What It Isn’t

        I was rather surprised, the other day to read the headline of an OP-ED in our local paper. It wasn’t actually the headline content but rather the author, one Star Parker. Ms., Parker is one of several young, bright, Black Conservatives who have made their names by being just that - the unlikely Trump supporting minority he disdains, (and said so prior to running for office!)

        In brief, Ms. Parker wrote on the subject of Qualified Immunity (QI for brevity) and the ills within that policy. Sadly, she tried to forge a direct link between that doctrine and the “murder by cop” of George Floyd, linking the doctrine to the homicide as if they were cause and effect. It’s just not that simple.

        Without a doubt, the killing of George Floyd and in large measure, the nationwide media coverage of protests in its wake, have put a spotlight on the legal doctrine of qualified immunity. Left unsaid in most circles is that QI wasn’t really at issue in the prosecution of former Minneapolis police officer Derek Chauvin and the three other former officers who face criminal charges stemming from Floyd’s death. That said, however, it is one of many structural factors that can make it difficult to hold police officers accountable for wrongdoing. This was not at question in the Floyd case, either. The Floyd murder, on the other hand was so egregious and controversial that the City Council of Minneapolis agreed to pay $27 million to settle a civil lawsuit from George Floyd’s family over his death in police custody, even as jury selection continued in Derek Chauvin’s murder trial!  

        Ok, what, then is the doctrine of Qualified Immunity? QI is a judicially created doctrine that shields (all) government officials (not just cops) from being held personally liable for constitutional violations—for monetary damages under federal law so long as the officials did not violate “clearly established” statutory or constitutional rights of which a reasonable person would have known.”

        The decision in the landmark case of Harlow v. Fitzgerald (1982) framed the articulation of QI which prevails today. Previous interpretations had revolved around the “subjective good faith” of the officer who committed the alleged violation, but in Harlow, the court adopted a new test framed in “objective terms.” In Harlow, the court established that a plaintiff could overcome QI only by showing that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” (remember this)

        While being obvious that the new “definition” was intended to be more protective of government officials than the “subjective good faith” test, the court also stated that the standard “provide[d] no license to lawless conduct.”  Since Harlow, however, application and interpretation of that doctrine the courts have applied the doctrine in three distinct ways that have made it more favorable to government defendants, and much more difficult for plaintiffs seeking redress. Remember, all this applies to freedom from civil litigation, not criminal prosecution, as many seem to think. So, the three roadblocks?

        First, in order to show that the law was “clearly established,” the court has generally required plaintiffs to point to an already existing judicial decision (precedent) with substantially similar facts. This essentially means that the first person to litigate a specific harm is out of luck since the specific right violated wouldn’t be “clearly established.” For example: The U.S. Court of Appeals for the Ninth Circuit heard the following case: A SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted QI to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.” (“We never had a tear gas/SWAT case before…tough shit, plaintiffs.”)

        Second, in Pearson v. Callahan (2009), the Supreme Court altered the way in which courts apply the doctrine in a manner that created another significant obstacle for civil rights plaintiffs. Previously, the Supremes, in Saucier v. Katz (2001), had ruled that  when assessing a qualified immunity defense, courts must first determine whether there was a violation of a constitutional right and then move on to analyze whether the law was clearly established. But in Pearson, the justices reversed course, allowing courts to grant QI based only on the clearly established and specific action by police (or other government actor-ATF anyone?) without ever determining if there was a constitutional violation, creating a “Catch-22” for civil rights plaintiffs. In the words of a dissenting judge: “No precedent = no clearly established law = no liability.” And according to a recent study conducted by Reuters: “Plaintiffs in excessive force cases against police have had a harder time getting past QI since.”

(An example of what this can mean:  When a police officer shot a 10-year-old child accidentally while trying to shoot a nonthreatening family dog, the Eleventh Circuit U.S. Court of Appeals held that the officer was entitled to QI because no earlier case held it was unconstitutional for a police officer to recklessly fire his gun into a group of children without justification.)

        Third, the Supreme Court’s definition of a “reasonable officer” has morphed since Harlow (1982 to grant government officials even greater deference and latitude. In a 1986 decision, the Supremes wrote that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Since then, the Supreme Court has stated that a defendant’s conduct is to be judged on the basis of “any reasonable officer” or “every reasonable official”—“thus implying,” as one critic wrote, “that in order for a plaintiff to overcome QI, the right violated must be so clear that its violation in the plaintiff’s case would have been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable ‘reasonable officer.’”  Could this have been a civil defense for the three who watched Derek Chauvin kill George Floyd?

        Unsurprisingly, both Justice Sotomayor and the late, great RBG, with (surprisingly) unlikely ally Justice Thomas, have been critical of the wide scope of QI. Justice Sotomayor wrote: (Qualified Immunity is) “A one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers”— in an opinion, which Justice Ginsburg joined. As Sotomayor put it, qualified immunity “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.”

Summary: So what? It’s (QI) just about civil damages anyway, huh? While that is true, reflect on this: would Derek Chauvin have been convicted (or even charged without video and numerous eyewitness testimonies? What if the same sequence of events had happened on a largely empty street at night?

        QI does apply only in civil lawsuits and not criminal prosecutions. But: such civil suits are the only means by which individuals or their families can get compensation for the violation of their constitutional or civil rights. And, in practice, civil lawsuits are often the only means to seek justice at all because prosecutors—themselves government workers—are typically reluctant to bring criminal charges against their government colleagues, especially police officers who are crucial to the work prosecutors do on a daily basis.

Assuming that QI assures there won’t be a civil suit with the possibility of a verdict of negligence or even wrongdoing by police, therefore no huge payout by the legislative authority, makes it (safer/easier/more convenient) to not charge police for criminal actions. Only the broad daylight and documented negligent actions of three bad cops in allowing the murderous activities of one truly heinous cop made Minneapolis decide to not even wait for a QI decision in the civil suit which was sure to come and sure to be decided in the Floyd family’s favor. The city’s acknowledgement of liability made it SOOO much easier for prosecutors to decide “Screw the “Blue Wall,” indict this murdering scumbag.”

        In discussing Qualified Immunity and, in her defense, alleging that it needs to go or at least be redefined, Ms. Parker chose the wrong case to make the right statement. So why eliminate QI? 

        First, it would return the Constitution to its proper place as a limit on government actions by making it possible for individuals to enforce the Constitution against government workers. (QI, or even the concept, is absent from the Constitution.)

         Additionally, its absence would encourage governments at all levels to take more responsibility for the actions of their employees. Since the government’s insurance company almost always pays the bill if/when an officer is found personally liable for violating someone’s rights, if qualified immunity is removed, governments would be forced to pay higher premiums, unless they took an active role in reducing civil and constitutional rights violations. It seems shameful that financial liability might have more effect in this area than conscience and the idea of equal protection, but there you are. For police, this might include providing de-escalation training and instituting robust use-of-force policies. In other words, a world without qualified immunity could mean a world where the government has a stake in making sure its employees follow the Constitution.

        Finally, although ending qualified immunity wouldn’t solve all problems of police abuse¹, it would unquestionably be an improvement. And unlike other proposals for police reform, eliminating qualified immunity would immediately apply to all government workers and could be accomplished either by the U.S. Supreme Court or Congress.

 

1. I have written at length in my blog about police violence and the mindset leading to it in many instances. When bullied kids become cops, they are still bullies. When someone who has been bullied becomes a cop, it can be even worse. The psychological eval to be a law enforcement officer should be the toughest obstacle, not just a minor annoyance.  I defer in this matter to Congresswoman Val Demings, former Orlando Police Chief. In a May 29, 2020 OPED in the Washington Post, she said this, in part: The eye-catching title was:

“My fellow brothers and sisters in blue, what the hell are you doing?”

        “When an officer engages in stupid, heartless and reckless behavior, their actions can either take a life or change a life forever. Bad decisions can bring irrevocable harm to the profession and tear down the relationships and trust between the police and the communities they serve. Remember, law enforcement needs that trust just as the public does. Think before you act! Remember, your most powerful weapon is the brain the good Lord gave you. Use it!

        Law enforcement officers are granted remarkable power and authority. They are placed in complicated and dangerous situations. They respond to calls from people with their own biases and motives. In New York, we’ve recently seen past pains of the Central Park Five dredged up in a new attempt to misuse law enforcement against an African American man. When you see people differently, you treat them differently. And when power is in the mix, tragedy can result.

        As law enforcement officers, we took an oath to protect and serve. And those who forgot — or who never understood that oath in the first place — must go. That includes those who would stand by as they witness misconduct by a fellow officer.

 As a nation, we must conduct a serious review of hiring standards and practices, diversity, training, use-of-force policies, pay and benefits (remember, you get what you pay for), early warning programs, and recruit training programs. Remember, officers who train police recruits are setting the standard for what is acceptable and unacceptable on the street.”

                                 Amen