Supreme Court

Judge Willett and Justice Sotomayor Attack Qualified Immunity for Cops

A libertarian-leaning federal judge and a liberal Supreme Court justice both make the case against qualified immunity.

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Senate Judiciary Committee

What do liberal Supreme Court Justice Sonia Sotomayor and libertarian-leaning 5th Circuit Judge Don Willett have in common? They both despise the modern SCOTUS doctrine of qualified immunity, which shields police officers and other government officials from being sued over violations of constitutional rights.

In Harlow v. Fitzgerald (1982), the U.S. Supreme Court held that government officials are entitled to immunity from civil suits so long as the conduct that they're being sued over "does not violate clearly established statutory or constitutional rights."

What that means in practice, Judge Willett observed in a 2018 opinion, is that "public officials [can] duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly." Justice Sotomayor has offered a similar view. The Supreme Court's "one-sided approach to qualified immunity," she wrote in a 2018 case, "transforms the doctrine into an absolute shield for law enforcement, gutting the deterrent effect of the Fourth Amendment."

Case in point: In its 2017 decision in Latits v. Phillips, the U.S. Court of Appeals for the 6th Circuit concluded that a Michigan police officer violated the Fourth Amendment when he shot and killed a fleeing suspect. But the court then proceeded to award qualified immunity to the officer anyway for his unconstitutional use of deadly force. "Although we now hold that [Officer Lowell] Phillips's conduct fell outside the bounds of the Fourth Amendment," the 6th Circuit said, "controlling authority at the time of the events had not clearly established the rights we identify today."

"The majority spends the bulk of its opinion explaining how Officer Phillips' use of deadly force was objectively unreasonable," responded 6th Circuit Judge Eric Clay in dissent. "In the final stretch, however, the majority abruptly shifts gears to hold that [the plaintiff's] constitutional rights were not clearly established…. In so holding, the majority has created a nearly impossible barrier for plaintiffs seeking to vindicate their rights against government officials."

Something has gone seriously wrong in our criminal justice system when the courts are running this kind of interference on behalf of blatantly unconstitutional police conduct. Here's hoping that the legal position championed by Sotomayor, Willett, and Clay eventually triumphs over today's destructive and preposterous qualified immunity regime.

NEXT: Supreme Court to Consider Tree Frogs, Liquor Licensing, Criminals With Dementia, and More This Fall: Reason Roundup

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27 responses to “Judge Willett and Justice Sotomayor Attack Qualified Immunity for Cops

  1. In the final stretch, however, the majority abruptly shifts gears to hold that [the plaintiff’s] constitutional rights were not clearly established?.

    I wish they’d hurry up and define what rights I have.

    1. Do you have a womb? No? Then you have no rights.

      1. Aren’t you precious. When was the last time a legislative body tried to tell you what you were allowed to do with your reproductive system?

        1. Abortion is the only absolute right spelled out in the Constitution. It’s right there in The Abortion Amendment. All others are negotiable.

        2. When was the last time they passed an anti-sodomy law?

          1. Anti-sodomy laws were ruled unconstitutional in Lawrence v. Texas, so I guess we can add the right to gay sex to the right to an abortion. With all others being negotiable. What a time to be alive. /sarc

            1. If I stick to sodomy, I’m pretty sure I won’t need an abortion. Unless I picked the wrong day to fall asleep in health class.

              There once was a lazy, effete young fop
              Who preferred all his women on top
              He said, “I’m no jerk!”
              “Let them do the work!”
              “But if I get pregnant, I’ll stop.”

            2. Hey sodomy just ain’t for teh gheys!

  2. Good thing Harlow v Fitzgerald isn’t a long-established rule like Roe v Wade and therefore is a precedent subject to overturning.

  3. Qualified immunity so long as there’s no violation of a clearly-established right against the violation sounds an awful lot like “ignorance of the law is a perfectly cromulent excuse as long as you’re a cop”. Was that wrong? Should I not have done that? Nobody said anything to me about such things being frowned upon. If I’d known that shooting random runners in the back was wrong I never would have done it.

    1. “I/we didn’t mean to” has become the new get out of trouble free card.
      It even excuses its own highly selective application.

      1. Whether they meant to or not doesn’t matter. What matters is department policy. If there is no policy that says they can’t shoot an unarmed person in the back, then they did nothing wrong. If there is no policy saying they can’t rape hookers in exchange for leniency, then they did nothing wrong. If there is no policy saying they can’t beat someone to death for being mouthy, then they did nothing wrong.

    2. I wonder if Thomas, Alito and friends wouldn’t have been happy to find Phillips liable in order to discover a right to “life” in some penumbra.

      The Fifth is clear enough for me when the government acts to take a life though (“No person shall be[…] deprived of life, liberty, or property, without due process of law”).

  4. We should replace Kavanaugh with Willet. Kavanaugh is a liability.

    1. He’s an asset to the establishment.

      1. Fucker helped write the PATRIOT Act.

  5. Is it me or has Sotomayor been a pleasant surprise in some cases?

    1. She has been. She’s been good enough on 4th Amendment issues often enough to counter-balance my concerns about Kavanaugh.
      We have to take what we get.

      1. She’s currently the only one on SCOTUS that has ANY direct/trial experience in criminal law – 3 months as local prosecutor.

    2. totally hearting Sotomayor in surprise fashion.

  6. In its 2017 decision in Latits v. Phillips, the U.S. Court of Appeals for the 6th Circuit concluded that a Michigan police officer violated the Fourth Amendment when he shot and killed a fleeing suspect. But the court then proceeded to award qualified immunity to the officer anyway for his unconstitutional use of deadly force. “Although we now hold that [Officer Lowell] Phillips’s conduct fell outside the bounds of the Fourth Amendment,” the 6th Circuit said, “controlling authority at the time of the events had not clearly established the rights we identify today.”

    What the fuck? Am I missing something or did they really rule that a fleeing suspect has no right to not get shot?

    “Don’t want to get shot while running from the cops like a thug, don’t run from the cops like a thug.”

    1. Until Authority gives you your life, your life is forfeit. All hail the King.

  7. Justice Clarence Thomas opinion in Ziglar v. Abbasi highlights that the qualified immunity doctrine is a mess and rests on shaky historical foundations.

  8. What the fuck does Roe v. Wade have to do with this? Even if you disagree with abortion, the libertarian’s default preference is to err on the side of individual prerogative. Roe v. Wade does that, even if mistakenly. Current 4A case law does not.

    Pull your heads out of your asses, and if you seriously can’t approach this issue without poisoning the well with your abortion bullshit, then GTFO a libertarian forum.

    FFS.

  9. The wise but blind Latina squirrel is good at finding 4th Amendment nuts…

  10. “Something has gone seriously wrong in our criminal justice system…”? It was never right, never fundamentally moral. Neither is the, not “our”, political system that it is a part of. The political paradigm based on the initiation of violence and sanctioned by the masses is immoral and impractical. It should be obvious. It was to a great many in the early days before mass compulsory infantile indoctrination (public schooling). Now, after over a century of crippling cognitive manipulation, few have the mentality, the maturity, to analyze and evaluate society.

    We live in dangerous times when technology has outpaced epistemology and ethics.

    When I read (hear), “Amen, God help us!” I think, case in point.

  11. Do we need another law to correct “blatantly unconstitutionally police conduct”? Police routinely violate the law. Will one more law be the miracle that stops them? Will they stop stealing, raping, murdering? Will they stop abusing the moral blank check their victims have granted them? Or do the victims have to wake up, self-govern, and be morally responsible mature individuals? Yes, but after 200+ years of political slavery, why would they? Why would a society suffering from a mass superstition (See: “The Most Dangerous Superstition” by Larken Rose) suddenly change?

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