Qualified Immunity

Police Sicced a Dog on a Surrendering Man. Will the Supreme Court Review the Doctrine That Gave Them Immunity?

The ACLU wants the Supreme Court to revisit the notorious qualified immunity doctrine.


Leah Millis/REUTERS/Newscom

When two Nashville police officers responded to a home burglary report in 2014, they found Alexander Baxter hiding in a basement. Baxter put his hands in the air. Nevertheless, the police unleashed a K-9 unit, which bit Baxter under his armpit.

Baxter sued the officers for excessive force, but in 2018 the Sixth Circuit Court of Appeals ruled that, whether or not Baxter's rights were violated, the officers were immune from his lawsuit. It wasn't clearly established, the court said, that using a police dog to apprehend him while his hands were raised was unconstitutional.

The decision hinged on a notorious doctrine, known as "qualified immunity," that protects police from lawsuits when reasonable officers wouldn't know they were committing a constitutional violation. Now the American Civil Liberties Union (ACLU) is asking the Supreme Court to reconsider not just Baxter's case but the entire doctrine of qualified immunity, which has faced a growing bipartisan chorus of criticism.

The ACLU today filed a petition for a writ of certiorari asking the Supreme Court to not only review Baxter's case but revisit the current standard for qualified immunity. "The costs of qualified immunity to the rule of law are real and significant," the ACLU writes. "Because qualified immunity relies centrally on the question of when the unlawfulness of particular conduct has been 'clearly established'—an inquiry for which a consistent standard has eluded federal courts for a generation—the jurisprudence of qualified immunity is beset with inconsistency."

As The New Republic recently noted, qualified immunity has recently come under criticism from both originalist and liberal judges. On the Supreme Court itself, arch-conservative Justice Clarence Thomas wrote in 2017 that qualified immunity should be revisited in an appropriate case, and while liberal Justice Sonia Sotomayor has bemoaned its effects on lawsuits over police shootings.

"As I have previously noted, this Court routinely displays an unflinching willingness to summarily reverse courts for wrongly denying officers the protection of qualified immunity but rarely intervenes where courts wrongly afford officers the benefit of qualified immunity in these same cases," Sotomayor wrote in a 2018 dissent.

U.S. Circuit Judge Don Willett wrote in a 2018 decision that, "To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly."

Reason's Damon Root described the Court's 1982 decision in Harlow v. Fitzgerald, which established the current test for qualified immunity, as one of the five worst Supreme Court decisions of the past 50 years. It has caused an enormous number of civil rights lawsuits to be tossed. This January, for example, the 11th Circuit Court of Appeals granted qualified immunity to a Georgia district attorney who allegedly defamed a wrongly convicted man in order to scuttle a bill in the state legislature that would have compensated him for his seven years behind bars.

"Although we conclude that Echols's complaint states a valid claim of retaliation under the First Amendment, we agree with the district court that Lawton enjoys qualified immunity because Echols's right was not clearly established when Lawton violated it," the court wrote.

The Second Circuit Court of Appeals ruled last year that two New York prison guards violated an inmate's First Amendment rights when they put him in solitary confinement for nine months for refusing to become a snitch, but added that this right wasn't clearly established at the time and therefore the guards were covered by qualified immunity.

The fuzzy definition of "clearly established" has led to confusion between courts. The Third Circuit Court of Appeals overturned a lower court's ruling that granted qualified immunity to a police officer who took intimate photos of a woman on his personal cell phone after she went to a police station to report a sexual assault.

"Qualified immunity undermines official accountability and lacks any sound legal basis," ACLU attorney Emma Andersson tells Reason. "It weakens respect for the rule of law by widening the gap between rights and remedies, and it denies justice to the victims of many constitutional violations."

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  1. “”that protects police from lawsuits when reasonable officers wouldn’t know they were committing a constitutional violation”‘

    Since SCOTUS can’t seem to define infringed, they will probably have a hard time defining reasonable.

    1. If ignorance of the law is a valid excuse, guess what you’re incentivizing?

      1. It is funny that ignorance of the law is NOT an argument citizens can make, but if you are law enforcement you can claim this all day and the courts will back you.

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  2. I am so angry that we got Kavanaugh instead of Willett.

    1. That is the thing about it; Kavanuagh wasn’t a very good pick. The guy has “another Roberts” written all over him. There were good reasons for the Republicans in the Senate to turn his ass down. But NOOO the retards had to show up and accuse him of rape and make it impossible for any Republican to vote against him without endorsing the slander.

      1. Right? We need an opposition party that isn’t insane. Like the Libertarian Par…. oh… uh…

    2. You were never going to get Willet. If not the Kavman, you would have gotten the crazy catholic lady.

  3. http://www.cnn.com/2019/04/08/…..index.html

    Felicity Huffman pleads guilty. Prosecutors are asking for jail time. I think the minimum mandatory for mail fraud is five years. God the federal system is nasty and unjust.

    1. >>>minimum mandatory for mail fraud is five years

      wtf?!? for mail fraud. hate everything.

      1. I think what they did was a crime. I even think it was worth prosecuting them. But, it is unjust and idiotic to send them to prison for any more than a few months.

        1. dunno what Felicity Huffman will learn by bars in her face more than she will some labor along the PCH while her buddies drive by

          1. Me either. We have got to fix our judicial system.

          2. How to eat pussy with a shank at her throat?

            1. assuming she doesn’t already sure

            2. How to eat pussy with a shank at her throat?

              Shiv is a noun. Shank is a verb.

              1. Maybe SIV was talking about a lamb shank. Some of those white collar prisons are pretty nice.

                1. No. They are not.

                  Check out memoirs from minimum security prison camps, for example Bernard Kerik’s “From Jailer to Jailed”. Or just think back to what you read about moldy food and a person without a jacket shoveling snow in “Orange is the New Black”.

                  Maybe 20+ years ago there was something to the idea of “Club Fed” but not now.

                  Remember — no Internet, and only five books.

              2. It’s amazing how many people get that one wrong.

          3. No bars. Probably a camp, which doesn’t even have a fence, though it’s a five-year additional charge for escape if you step over a line in the ground.

    2. The Republican Comstock law allowed ten years on a chain gang AND a fine in gold worth $295,000 today. This was for a mother sending her daughter a letter explaining the rhythm method of birth control, or telling her where to buy a diaphragm. Search WordPress for “Republicans banned ALL birth control” for the text of the postal monopoly law.

    3. Can’t the judge say “five years… suspended providing the defendant does x,y, and z”? Or is it “five years, nothing I (the judge) can do”?

      1. Five years. Equal justice or else. We don’t want riots in the streets because the honky bitch get off – – – –
        No justice, no peace.

    4. Mandatory minimums are fundamentally unjust. Prosecutors say they’re needed to help them negotiate plea bargains, which leaves me pretty angry.

      There’s at least one organization lobbying against all mandatory minimum sentencing laws.

  4. To some observers, qualified immunity smacks of unqualified impunity…

    What has two thumbs and is one of those observers?

  5. They actually had a precedent, but it involved a different breed of dog, so it wasn’t similar enough to this case.


    1. The obvious solution is to shoot the dog. It’s the moment they trained for.

  6. On the one hand I can see this as “excessive force” but on the other hand I’d e happy to know anyone burglarizing MY home got bit by a police dog.Hell, I’d by those cops a few beers and send them a card on every anniversary of the foiled burglary.

    1. These would be the same cops who would be all to happy to take your guns from you if you were home and had confronted the burglar.

      Never be a cuck to cops.

      1. Wouldn’t happen where I live.

        1. SIV, only cucks would say that – unless there are absolutely no gun laws where you live and cops understand that if they trespass they are subject to being shot and where there is no SWAT team and where the cops NEVER cooperate with the feds.

          1. In all fairness, I live in KS. And most of the cops I talk to (both in the rural county I work in, and the suburban county I live in) are all in favor of citizens carrying weapons to defend themselves and have no interest in taking away people’s guns.

            Though, I think the cops in states like MA, NY, NJ, CA, MD, etc. have very different mind sets.

        2. Wouldn’t happen where I live

          It could never happen here…

          1. Eventually the Californians will ruin Texas and other states and utlimately move on to KS…

    2. I’d of course want instant justice served on any burglar caught in my house, but then, I accept that a trial (or at beast a plea bargain) has to intervene before a punishment is handed out.

      Exceptions include if the burglar is threatening others or trying to escape justice, which I don’t think this burglar seems to have done.

      1. at best, not at beast

        1. At breast

        2. Although, in this case, beast is OK.

      2. …but I think this case is still at the stage where they assume the plaintiff’s claims are true. Even if they abolished qualified immunity, the cops could still say the bite was legal under all the circumstances, and they’d be free to dispute the plaintiff’s version of the facts.

      3. “Escape justice.” Define justice, because it seems not even the Supreme Court has that one figured out.

  7. While I fucking hate the way qualified immunity is used, I really don’t see that this is the case to go after. I haven’t read all of the details, so I am not sure if there was a finding of fact that there was even unreasonable force used in any way. The guy had 1 bite, which is how the K9s are trained to apprehend the suspect. He admitted that he hid all the while the police announced they were releasing the dog to search. And all we have is the suspect’s word that he had already surrendered. Mind you, the fact that he was a burgler is a fact. He began the event breaking into a different home, then ran and eventually hid in this home (which he had admittedly burgled before).

    1. Why not applaud the ACLU in this instance?

      Any immunity, for any public sector actor, is anathema to a civilized, decent, free, and prosperous society.

      Those that love the swamp support immunity for the king and his parasites.

      1. Case shopping is a good thing before taking a case to SCOTUS since they hear a limited amount of cases. You lose this one and who knows when they will hear the next one. They get something like 7500 appeals and only hear 80 of them a year. But yeah its good to see the ACLU stand up for individual rights once and awhile like they used to do.

        1. My point is made for the purpose of asking “if not now, when, and if not us, who?”

          Of course, if the facts were that the plaintiff was on his property and the cops knew that this was his property and they unleashed the dog anyway, it would preferable.

      2. I think I don’t like this because, I am not sure the cops did anything wrong on its face. And so arguing whether or not qualified immunity should apply here (or in fact anywhere) isn’t going to do anything to try to push back on the power of the state.

        But, you make a fair point for the larger case that the ACLU is pursuing. And I hope they are able to have success.

        1. Please ignore the (or in fact everywhere).

          Edit button PLEASE????

          Hello? Hello? Is this thing on??

          1. An “edit button” would be abused by the likes of Tony, et al, to claim that they never said the bullshit that they did, in fact, say. Use the preview button.

            1. It would be nice to have a 5 minute window to proofread. It could also tag the post as having been edited

      3. Because some people are small minded even when their enemy is basically handing them a $100 bill without any strings attached.

    2. Your objection is totally, completely, entirely irrelevant. The court said the cops can’t be sued, period. The facts of the case do. not. matter. There’s no question being raised as to whether or not the cops let the dog loose before, during, or after the guy’s surrender, that would be a factual determination made by a jury in the course of a civil trial, and the court said there’s not going to be a civil trial because it doesn’t matter who let the dogs out or when they let the dogs out, the cops can’t be sued.

      1. I see your point. I will be honest, I hadn’t thought that through. I guess you are correct in that with qualified immunity in play, it never even gets to that point.

    3. So you’re saying they didn’t have eyes on him when they released the dog to attack him? Do you think it would have been equally okay for them to just start blindly shooting around the basement?

      Police dogs are trained to attack and apprehend, not to search. Or more precisely, there are search dogs and there are apprehend dogs – and they get very different training. Search dogs are trained to find a target then display a marking behavior (such as pointing or sitting). Apprehend dogs are trained to apprehend a target that they have been specifically pointed at. They cannot be generally pointed at a crowd (or a building) because the dog has no way to discriminate between the criminal to be apprehended and an innocent bystander (or in this case, the possibility of a family member or other innocent in the basement).

      If you demand that the case involve a saint before the Supreme Court can define the boundaries of our constitutional rights, you will never get a case decided. Yes, he’s a criminal and a bad man. But that alone is not sufficient to condemn him to attack.

      1. “Do you think it would have been equally okay for them to just start blindly shooting around the basement?”

        “I like to soften up a room before I walk in.”
        – Uncle Duke

  8. One of the problems with immunity for public sector actors, in general, is it is oppositional to both the letter and the spirit of the Unanimous Declaration and the federal constitution. Immunity is also repugnant to the aspiration of the Founding.

    Thus, the proposition that “public officers require this protection [immunity] to shield them from undue interference with their duties and from potentially disabling threats of liability, Harlow v. Fitzgerald, 457 U.S. 800, 806,” is nothing more than ruling class rubbish sanctioning a two-tiered justice system: one for the ruling class and its myrmidons and one for the private, productive sector.

  9. The fuzzy definition of “clearly established” has led to confusion between courts.

    This smacks of the sort of uncertainty argument that if you don’t know what’s exactly correct, all answers are equally plausible. If you don’t know how much a dog weighs, then 3 ounces and 45 pounds and 2 tons are all possible correct answers.

    1. there are no 2 ton dogs, so I’m not sure what your point is.

      1. You clearly forgot about Amy Schumer.

  10. I’ll be surprised if the looter court fails to reprimand the cop for not summarily shooting the perp in the forehead. After all, dead victims file no lawsuits and give no testimony. Then again, a judge from “THE other side of the aisle” might as easily add to the charges, alleging the burglar endangered the dog by resisting dismemberment. The workings of The Klepto-gerontocracy are getting more predictable by the day.

  11. Dogs are cute.

  12. I wouldn’t be surprised if SCOTUS only symbolically got rid of qualified immunity. It could do this by collapsing the QI inquiry into the inquiry over whether 42 USC 1983 was violated (i.e., a 42 USC 1983 violation requires a clearly established right to be involved).

    SCOTUS may modify QI, but it won’t abandon it completely. It would definitely keep it for when the courts, regulations or a statute misdirect law enforcement as to what is allowed. For example, where one of those three tell the police that X is allowed, and then a court rules that X should not be allowed.

    The federal courts have applied QI to an absurd level, but I don’t think SCOTUS will decide that means that law enforcement should be subject to suit when erroneous permission is given or where it truly is unclear whether a certain action is legal (as opposed to the BS ticky-tack factual differences many federal courts have applied).

  13. If you’re going to be a burglar you forfeit your right not to get bit or shot.

    1. If you’re going to be a cop you forfeit your right to beat someone up or shoot them or sic your dog on them after they surrender. Okay, so I’m dreaming.

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  15. Oh no! A criminal who invaded someone’s home got bit by a dog! God forbid! Please…what can we do to make america safer for criminals who violate the individual rights of others?

    1. Don’t worry, if the courts uphold the qualified immunity doctrine, America will remain safe for the criminals who unleashed a vicious animal on a defenseless citizen.

    2. Punishment first, then trial? You just violated your oath as a Marine.

  16. Here is a really off the wall concept – equal justice for all.
    It doesn’t matter what your job is, you follow the same laws and face the same punishments for violating them.
    Yes, that includes “journalists”.

  17. I come from a place, Geneva, Switzerland, where cops are fined for driving over the speed limit whilst chasing criminals (confirmed by the Supreme Court). I find the ACLU request perfectly reasonable.

  18. They didn’t know it was unconstitutional? They should have known it was plain old illegal. They should be facing charges for assault with a deadly weapon. They should be fired and tried and imprisoned and banned from any future role in law enforcement.

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