This week, several House Democrats proposed new legislation to combat police brutality in the wake of ongoing protests. The Justice in Policing Act of 2020 outlines reforms such as the prohibition of racial, religious, and discriminatory profiling, a ban on chokeholds and no-knock warrants on the federal level, a new National Police Misconduct Registry, and reforms to qualified immunity so that “individuals are not barred from recovering damages when police violate their constitutional rights”. Some say qualified immunity reforms could be the bill’s biggest, and most complicated, provision. 

Before that, on June 4th, Congresswoman Ayanna Pressley and Congressman Justin Amash introduced the Ending Qualified Immunity Act.

Qualified immunity, a legal doctrine whose origins date back decades, has received much popular attention in the wake of the killing of George Floyd, an unarmed African-American man in Minnesota, by a police officer and the subsequent nationwide protests. It is one of the most recent examples in a long string of deaths of unarmed black people in America. 

Qualified immunity is having a moment. But, what is it, exactly?

What is Qualified Immunity?

Qualified immunity is legal defense, created by U.S. federal courts, that protects government officials from both liability and damages in civil cases. It has a two-prong test: 

  1. The government official must have violated someone’s constitutional rights
  2. In violating someone’s constitutional rights, the government official must have violated a “clearly established law” while doing so

Here’s an example. In the case West v. The City of Caldwell (2011), a case that has been submitted to the Supreme Court and may be reviewed soon, police arrived at the Idaho home of Shaniz West without a warrant. They were looking for her ex-boyfriend and asked to “get inside” her home. West allowed them in. 

In their search, the police destroyed much of West’s personal property. They also threw tear gas through the windows, something West had not consented to. The use of tear gas made her home uninhabitable for two months.

The ex-boyfriend was not home.

In a series of lawsuits, West asserts that the police officers violated her constitutional rights. The qualified immunity defense has repeatedly been used to protect the officers involved.

To understand qualified immunity, one must understand that our legal system relies heavily on the use of precedents set by previous court decisions.

In West v. The City of Caldwell, the qualified immunity justification is that there is no previous legal case that sets the precedent establishing that the way the officers violated her rights was illegal at the time. In other words, the police officers could not have known that they were violating her rights when they took that exact action (tear gassing her home)—because there has been no previous court case, with similar enough details, that would inform them that what they did was wrong.

William Baude is a law professor at the University of Chicago Law School who specializes in constitutional law, the federal courts, and conflicts of law. He says that qualified immunity played a role in that second criteria, clearly established law. “There are dozens, hundreds of cases saying you can’t go into someone’s house without a warrant. But of the specific examples, there just doesn’t happen to be one that involved a fugitive and a tear gas grenade.” Baude explains that qualified immunity relies on how a “reasonable officer” would react and think in a situation, “We need some case that’s like this one so that a reasonable officer would know, ‘Okay, no tear gas grenades through the windows. Got it.’”

Katherine MacFarlane is an Associate Professor of Law at the University of Idaho. Previously, she worked as an Assistant Corporation Counsel in the New York City Law Department, and, at times, defended police officers. She, like William Baude, is also critical of qualified immunity’s applications. “You’re never really going to have a prior case that’s exactly like the one in front of you. So what that results in, practically, is there’s going to be a finding that, ‘Well, there was no way to put this particular officer on notice that what they did was a clearly established violation.’”

This illustrates the “clearly established law” criteria of the two-prong test. There must be a prior legal case with similar, if not exact, details that creates the precedent specifying that a certain action is wrong. If not, a government official, including a police officer, cannot be liable because, as the doctrine says, how could they have known?

In criminal justice, the intent of qualified immunity is to protect police officers from copious lawsuits, given the fact that they often must make split-second decisions in tense, highly-dangerous situations. The rationale is that in those moments, any reasonable officer does not have the time nor the luxury to stop and think about prior legal precedents in the heat of the moment. 

Taking that into account, qualified immunity presents a double-standard. Police officers study laws and procedure vigorously in order to pass the numerous tests required to make it into a police academy and then work up the ranks. The average citizen does not. “For ordinary citizens who are worried about being charged with a crime, ignorance of the law is no excuse. This is a special benefit that police officers get and ordinary people who are less familiar with the legal system don’t get,” Baude says.

Where did Qualified Immunity come from?

         In 1871, during the post-Civil War Reconstruction Era, Congress passed the Civil Rights Act of 1871 (also known as the Klu Klux Klan Act), which created Section-1983: a landmark legal code that allows anyone to sue, in federal court, someone who violates their Fourteenth Amendment rights, including equal protection under the law and due process. 

It was designed to protect the rights of newly freed slaves and allow them, or anyone, to sue members of groups like the Klu Klux Klan for abuses. It was a historic measure enacted as the country began to, slowly, address the painful sin of slavery.

Despite its enactment in 1871, Section-1983 was relatively dormant for a long time. Then in 1961, the case Monroe v. Pape—a case in which a black family sued local police officers for breaking into their Chicago home without a warrant, forcing them to stand naked in their living room while much of their personal property was destroyed, and detaining James Monroe, the father, for hours—breathed new life into Section-1983, clarifying that it could be used to sue government officials for violations of constitutional rights.

Then in 1967, with such rights in place, the Supreme Court introduced the idea of qualified immunity. In the case Pierson v. Ray, the court upheld that government officials who violated constitutional rights but still acted in “good faith” could assert qualified immunity as a defense in civil suits.

Several other cases continued to clarify the definition of qualified immunity. Then in 2001, the case Saucier v. Katz established the two-prong test that is now the standard. Again:

  1. The government official must have violated someone’s constitutional rights
  2. In violating someone’s constitutional rights, the government official must have violated a “clearly established law” while doing so

Implications of Qualified Immunity:

             Over the years, case by case, qualified immunity has become very complex. Civil cases are first filed in local district courts, and this is where most of the decisions are made (they can be appealed). Even still, these courts largely follow the Supreme Court’s guidance. And such guidance is getting dicier, says Joanna Schwartz, a Professor of Law at UCLA who specializes in police accountability and public interest lawyering. “The Supreme Court has given very shifting guidance to courts about what clearly established law means and has also progressively narrowed the defense over the years of its existence.” In particular, Supreme Court rulings are actively loosening the way the classic two-prong test can be administered, making it less rigorous, and, therefore, giving more leeway to government officials over everyday plaintiffs. This is exactly what happened in 2009’s Pearson v. Callahan ruling. “Recently, they told lower courts that they can grant qualified immunity without ruling on whether the conduct was unconstitutional. The Supreme court is telling plaintiffs, ‘You have to find a case where a court has held really similar conduct to be unconstitutional.’ And at the same time, telling lower courts, ‘You don’t have to rule on whether the conduct was unconstitutional,’” Schwartz says. 

It can get pretty confusing. To break it down; If you can’t find another case that has similar enough details to the one at hand, then that can be it—you can throw out the case at hand using the qualified immunity defense. No need to assess the first part of the test: whether someone’s constitutional rights were, in fact, violated. You don’t have to consider that anymore.

Qualified immunity is used more and more as a defense in civil suits against police officers. A recent Reuters study created and analyzed a database of district, appellate, and Supreme Court cases. On the appellate level, out of 529 circuit court opinions (published from 2005-2019), the study found that appellate courts had a “growing tendency, influenced by guidance from the Supreme Court, to grant police immunity.” Furthermore, “More than ever, they are ignoring the question of whether cops have violated a plaintiff’s constitutional rights, thereby avoiding establishing a precedent for future cases and making it harder to win cases against the police.” Unmistakably, it is difficult to win a civil suit against a police officer. 

The Reuters study reinforced many expert opinions on the nearly-impossible burden placed on plaintiffs to find precedent-setting cases with almost identical facts. “The failure to set precedents is particularly challenging for plaintiffs because the data also showed that appellate courts are increasingly requiring a nearly identical case from the past to serve as a precedent that clearly establishes an officer’s actions as illegal – a high standard that again makes it hard to win against the police.”

On the Supreme Court level, Reuters investigated the claim that the Supreme Court is more likely to intervene in requests put forth by officers than by civilians. The study compared Supreme Court and Westlaw records to find use-of-force cases that mentioned qualified immunity from 2005 to 2018. The study showed that out of 121 relevant petitions gathered, an officer “was 3.5 times more likely than a civilian to have a petition accepted.”

Supreme Court Justice Sonia Sotomayor has spoken out against qualified immunity’s growing influence in dissents, “By sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow.”

But, all the data and cases on the table, qualified immunity’s effectiveness in achieving its intended aim in court is not as simple as one may think. 

In a paper for the Yale Law Journal, Professor Schwartz says that the qualified immunity doctrine is not effective at achieving its desired goal of shielding “government officials from burdens associated with participating in discovery and trial”. She found that across the five districts she analyzed, “…just thirty-eight (3.9%) of the 979 cases in which qualified immunity could be raised were dismissed on qualified immunity grounds.” Furthermore, “…when one considers all the Section 1983 cases brought against law enforcement defendants—each of which could expose law enforcement officials to burdens associated with discovery and trial—just seven (0.6%) were dismissed at the motion to dismiss stage and thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds.”

This may sound counterintuitive or surprising—a legal doctrine that has such influence on law enforcement and its relationship to the public is not actually successfully used as a defense in court all that often. 

Does that render qualified immunity a non-issue for those concerned with police brutality and criminal justice? Professor Schwartz says, not so fast. “Although qualified immunity is the reason that relatively few cases are dismissed, the doctrine is still having an important impact on lawsuits.”

The mere fact that qualified immunity exists at all, has been used, and still is being used—no matter the success rate—sends a dangerous message that could be empowering government officials to act more recklessly, and, at times, dangerously. “The Supreme Court and lower court decisions granting qualified immunity send a troubling message to law-enforcement that they can violate people’s rights without consequence and send a message to plaintiffs that their rights do not matter,” Schwartz says. 

Also, as noted in the Reuters study, qualified immunity’s influence is still growing in appellate courts.

Qualified immunity is, therefore, only one of many systemic barriers to keeping law enforcement accountable and ensuring justice for victims and their families. The data, all together, points to something much bigger “…these numbers actually mean that there are many many other barriers to relief in these cases.”

Whether legislation to reform policing in America, including reforming or even abolishing qualified immunity, will pass both houses of Congress is unknowable. But, lawmakers and advocates alike should keep this in mind: qualified immunity is only one piece of a much larger puzzle.

June 9, 2020

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