Civil Liberties

Qualified Immunity Is an Unqualified Disgrace 


In 2014, a Colorado social worker allegedly strip-searched and photographed a 4-year-old girl without a warrant. The mother sued on behalf of her traumatized daughter, but the two courts that subsequently dismissed the case never ruled on whether the girl's Fourth Amendment rights were violated.

Instead, a U.S. district court and the 10th Circuit Court of Appeals ruled that the caseworker was shielded from the lawsuit by the doctrine of "qualified immunity," which essentially allows public officials to violate a constitutional right as long as the right has not yet been clearly established in the courts. Reason Foundation (the nonprofit that publishes this magazine), the Cato Institute, and the American Civil Liberties Union (ACLU) have now filed petitions asking the Supreme Court to review the current standard for qualified immunity.

The ACLU's petition is on behalf of Alexander Baxter, a Nashville man who was bitten by a police dog while he had his hands in the air, surrendering. Baxter sued, alleging excessive force, but the 6th Circuit Court of Appeals ruled in 2018 that it wasn't clear using a police dog to apprehend him while his hands were raised was unconstitutional.

Judges of all stripes have assailed qualified immunity. Justice Clarence Thomas wrote in 2017 that the doctrine should be revisited, while Justice Sonia Sotomayor has bemoaned its effects on lawsuits over police misconduct.

U.S. Circuit Judge Don Willett, who was reportedly on President Donald Trump's shortlist for the Supreme Court, 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."

In 2017, the 4th Circuit Court of Appeals overturned a lower court's ruling that granted qualified immunity to a police officer who obtained not one but two warrants to take naked pictures of a 17-year-old boy suspected of sending sexually explicit photos to his 15-year-old girlfriend. The officer then allegedly forced the teen to masturbate in front of him so he could get a picture of his erect penis.

"A reasonable police officer would have known that attempting to obtain a photograph of a minor child's erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child's right of privacy under the Fourth Amendment," the court wrote.

Under qualified immunity, state actors can get away with almost anything. There's nothing constitutional about that.

NEXT: Brickbat: Looking at the Evidence

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  1. Depressing Monday morning reporting from Reason. Wacked-out intersectional deviant mobs to my left. Authoritarian boot-licking storm troopers to my right.

    Almost as hysterical as network news.

    1. Uh, those intersectional mobs ARE authoritarian, boot licking stormtroopers, skippy. At present the left is a far greater threat by virtue of controlling the culture and education complexes. That's not to say things can't change.

      If the Court would get rid of qualified immunity and bureaucratic deference in the Chevron ruling it would take the wind out of the sails of statist hacks of any stripe. That would be a great legacy for Trump, even if it was accidentally arrived at.

      1. Trump is building walls and instituting tariffs but it's dopey college students who are the REAL threat to human freedom.

    2. Project with your multiple personalities, much?

      Ignorance of the law is not an excuse that would work for anyone else, why does it for law enforcement?

      And just how entitled does one need to be to think it justified to take kiddy porn pictures with a government camera?

      1. Interesting, that the 4th Circus made a ruling on what the cop did, when the report was that he did it with a warrant, that some judge must have approved of.
        Maybe this immunity shit needs to be looked at, because judges get it, without it being "qualified", at all.
        Ever see a judge sued over letting some criminal out, who goes on to commit a murder or other serious crime? Or a parole board?

  2. Hey, maybe they're planning on getting better.

    “We do not condone this illegal behavior by law enforcement; the better practice is to obtain a warrant before entering a home,” the panel continued. “Ordinarily, the evidence found here would be excluded. But because the government had so much other evidence of probable cause, and had already planned to apply for a warrant before the illegal entry, the evidence is admissible.

    The Fourth Amendment is no longer a commandment, it's been reduced to "best practices". And as long as you were planning on following best practices, we're all good here.

    1. Then too there's the final sentence: “Though the government should not profit from its bad behavior, neither should it be placed in a worse position than it would otherwise have occupied,” the panel concluded.

      Yes, yes, they should, motherfuckers. Otherwise, what's the disincentive to continuing with the bad behavior?

  3. The ugliest attack on FREEDOM:

    United States Supreme Court
    IMBLER v. PACHTMAN(1976)
    No. 74-5435
    Argued: November 3, 1975Decided: March 2, 1976

    Get rid of SUI GENERIS

    Get rid of unreviewable prosecutors
    Get rid of unaccountable prosecutors

    Lawyers oversight of lawyers?


    1. How about the glorified lawyers, who get to be judges?
      They should face oversight, too.
      No one, who has ever worked in the "legal" profession should be made into a judge, whose rulings mostly affect other lawyers.

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  5. If you want to guarantee the end of 'qualified authoritarianism,' the only tried and true method in American history is the bullet.

    If people started killing cops who were obviously violating the Constitutional rights of those whom they encountered, this 'legal doctrine' would've ended a long time ago.

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  7. Calling qualified immunity an "unqualified disgrace" is too lenient. As with any rational assessment of our government's deliberate droning, poisoning, and biologically infecting people who have harmed no one or its imperialistic perpetual wars, it is difficult to find words that fully assess such state sanctioned crimes against humanity. (Qualified immunity is tantamount to sanctions.) For now, I'll just call qualified immunity an evil horror of our present day police state and the Supremes, lower courts, cops, district attorneys and all our other rulers and masters are all members of the same pact and guilty of perpetuating the horrors!

  8. The biggest problem isn't that we cannot sue abusive officials, it is that we cannot _prosecute_ them. In many police misconduct cases, the cop actually committed a crime - but the prosecutor becomes a co-conspirator. Restore the right of private prosecution.

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