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
