Qualified Immunity

Courts Grant Qualified Immunity to Cops in More Than Half of Cases When Invoked

A Reuters investigation reveals courts "growing tendency" to grant cops immunity from civil rights lawsuits.

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Federal appeals courts regularly grant police officers immunity from civil rights lawsuits under a doctrine known as "qualified immunity." According to a Reuters investigation published today, they grant it in more than half the cases where it is invoked.

Reuters analyzed 252 federal appellate opinions from 2015 to 2019 where law enforcement defendants claimed qualified immunity. The courts ruled in the police's favor in 57 percent of the cases.

They have done this more often in recent years, establishing what Reuters calls a "growing tendency, influenced by guidance from the Supreme Court, to grant police immunity." The courts also increasingly avoid ruling on whether the alleged conduct violated the Constitution, "thereby avoiding establishing a precedent for future cases and making it harder to win cases against the police."

Under the 50-year-old doctrine of qualified immunity, police and other government employees are shielded from lawsuits where the civil right they allegedly infringed hasn't been "clearly established," or where a reasonable officer wouldn't have known about it. 

The investigation comes as the U.S. Supreme Court will decide whether to hear 13 different petitions concerning qualified immunity at a conference later this month. The high number may be a sign that the justices are finally ready reconsider the doctrine.

On its face, qualified immunity is supposed to protect public officials from frivolous lawsuits related to their official job duties, but the confusing precedent has been construed so pedantically by some courts that plaintiffs must find precedents that match the exact circumstances of their case. Qualified immunity effectively short-circuits civil litigation against individual police officers, ensuring that the cases never make it to trial or settlement.

Reason Foundation (the nonprofit that publishes this website), the Cato Institute, and the American Civil Liberties Union (ACLU) have all filed petitions and amicus briefs asking the Supreme Court to review the current standard for qualified immunity.

Reason has written extensively about how qualified immunity protects individual police officers from liability in case of clearly excessive and abusive conduct. Most recently, a U.S. District Court judge in South Dakota granted qualified immunity to several police officers who forced plaintiffs to undergo involuntary catheterizations—despite finding that the practice violated the Fourth Amendment—because there wasn't a "robust consensus" on the constitutionality of cops and nurses holding down suspected drug users and shoving tubes up their urethras.

Last September, the Ninth Circuit Court of Appeals ruled that Fresno police officers accused of stealing more than $225,000 while executing a search warrant were protected by qualified immunity. A month before that, a Ninth Circuit panel granted qualified immunity to an officer who without warning shot a 15-year-old holding an airsoft gun. 

"Under the circumstances, a rational finder of fact could find that [Officer Michael] Gutierrez's use of deadly force shocked the conscience and was unconstitutional under the Fourteenth Amendment," the panel wrote. But "because no analogous case existed at the time of the shooting, the district court erred by denying Gutierrez qualified immunity for this claim."

The Reuters analysis found about three dozen cases where courts found that police violated plaintiffs' constitutional rights but nonetheless granted them qualified immunity:

Outside of Dallas, Texas, five officers fired 17 shots at a bicyclist who was 100 yards away, killing him, in a case of mistaken identity. In Heber City, Utah, an officer threw to the ground an unarmed man he had pulled over for a cracked windshield, leaving the man with brain damage. In Prince George's County, Maryland, an officer shot a man in a mental health crisis who was stabbing himself and trying to slit his own throat.

The ACLU's Supreme Court 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.

Sitting members of the federal judiciary have also assailed the doctrine. 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."

There are some sympathetic ears on the Supreme Court for overhauling, or at least reconsidering, 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.

"Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment," Sotomayor wrote in a 2018 dissent. "It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished."

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  1. Wow. I’m shocked that it’s ever denied.

    1. Me, too. It’s like “The Good Samaritan Law”, isn’t it?

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    2. If I’d had to guess, I’d have thought no more than 10% had been denied, just trying to be optimistic. 43% is almost unbelievable.

      It’s that nonsense like plain theft of $225,000 that really galls me. Theft, plain simple theft, recognized as evil by everyone since time immemorial. How can any court anywhere any time say the cops hadn’t been told Don’t Do That?

      Beyond farcical. Truth is stranger than fiction, because fiction has to sound plausible. Those judges deserve a good old fashioned tar and feathering, followed by paying $225,00 plus court costs plus punitive damages. On second thought, do that to the cops also.

      1. Money is one thing, but it’s very important to grant immunity whenever our focus is on pushing back against the “free speech” rubbish we keep hearing about in the so-called “first amendment community,” ha-ha-ha. How would we be able to make arrests, get the “speech” perpetrators, and litigate these cutting-edge cases if had to play it safe and watch our own backs? If that had been the “law,” we might have been stymied, for example, from securing the crucial convictions in our nation’s leading criminal “satire” case. See the documentation at:

        https://raphaelgolbtrial.wordpress.com/

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  2. What does the dog have to do with it? I am pretty sure Officer Sarge gets immunity. Just saying.

    And I am shocked that it is ever denied. Forget the overall numbers, I want to know about the cases where it is denied. What did the cop do to get it denied? The fact that it is denied in even a significant minority of cases certainly is contrary to the impression left by reason and sites like Instapundit that would have you believe it is never denied. This is actually good news. At least it is not zero, which is what I would have thought it would be.

    1. It’s denied when they commit an act which had previously been ruled unconstitutional.

  3. No one has ever managed to explain why ignorance of the law is no excuse for civilians but affords immunity for enforcers of the law.

    1. The theory is that technically since no court has ruled that the specific action was a violation of rights, their was not established law to violate.

      1. Yeah, except that interpretation is exactly not the one offered to us peons. You do something novel on your taxes and the IRS will be very quick to prosecute you whether or not there were any prior rules on that specific action.

    2. And maybe throw in a little common sense.

    3. Because citizens don’t have a Union?

  4. You know, I work in the medical field and though am not involved in direct patient care since 2001 I have been forced to acknowledged the HIPPA law yearly by signing that I understand the law etc. Why not do the same for cops, have a document that lays out our constitutional rights and make them sign yearly that they understand these rights before they can work as a law enforcement officer? What objection could they have to that?

    1. You sound guilty, of something. (Police officers everywhere)

      Crazy old me thinks it’s a fucking excellent idea.

      1. sounds like you a copsucker and I hope you get the general Flynn treatment or a SWAT raid on your house when they have the wrong address

    2. I can’t argue against your idea, Rockstevo. Nice.

    3. Because courts will occasionally find novel rights. Imagine being the guy who didn’t read Miranda his rights. You want to get personally sued because you didn’t do something that the federal courts hadn’t previously said you need to do?

    4. The idea of qualified immunity makes sense in a truly novel case.

      Does using partial DNA matches to find your relatives which leads to your arrest violate your right to privacy? Who knows? If it seems reasonable but a judge later rules it went too far, that’s something that the officers shouldn’t be liable for.

      However, it’s so often invoked in clear cases, that it’s an absurd mockery of what it was meant to be.

  5. There are two things that continuously piss me off about how QI is applied. The first is that despite not actually being law anywhere, it is used to trump law. Deprivation or rights under the color of law is an actual crime, yet QI is often applied de facto. Only when actual law exists which exempts police from a statute (such as a duty to retreat in defense cases) are police not supposed to be subject to the same laws as everyone else.

    The second is that even in the judicial precedent, the “clearly established circumstances” doctrine has never existed. It is “clearly established law or constituitonal rights” and this was clarified in Katz. Also it is meant to meet a reasonableness standard. But that’s ignored by courts in cases like Gutierrez.

    Give the government an inch, and the take a couple megaparsecs.

  6. We’ve allowed the Government Class to set itself up as an aristocracy in all but name.

    1. Stop voting for democrats, shitstain.

      1. GOP worships cops

  7. Are we sure it’s only half? Maybe it’s just that courts have discouraged people so much from filing claims, that of the ones that actually make it to the bench, half are patently unreasonable.

    1. Yeah, that’s the thing. It’s impossible to tell how many lawsuits are never filed, or how many cops decide not to try to invoke QI because it obviously doesn’t apply.

  8. When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

    1. what could possibly go wrong with that perfect system?

  9. John F. Kennedy once said that when peaceful revolution becomes impossible, violent revolution becomes inevitable. The same is true of official justice and vigilante justice.

    And the courts seem hell bent on making official justice impossible, when it’s a cop who is accused.

  10. “The courts ruled in the police’s favor in 57 percent of the cases.”

    While I’m no fan of qualified immunity, one thing that can get lost in these discussions is that in a substantial portion of the cases where the court’s ruled in the police’s favor they did so because they determined that the police did not use excessive force. According to the Reuters study, more than half of the 57% of times the police prevailed between 2017 and 2019 was because the court found that the police did not use excessive force (which is a whole different problem that goes beyond qualified immunity).

    1. It’s likely that the cops were actually justified in the majority of cases where complaints were filed through police department channels. Most of these cases never go to court – and very few bogus complaints are filed when the cops were wearing cameras.

      But when a lawsuit is filed and QI is invoked, often the court never even considers whether there was excessive force or other police misconduct. It not only shields the cop who finds a slightly different way of misbehaving, but it often shields the cop who exactly duplicates previous misbehavior, since the court that granted QI did not rule on whether the police actions were illegal.

  11. Qualified immunity invites abuse by the “all powerful” cops, gubment employees etc.. It must be stopped.

  12. Never talk to a cop and definitely never trust one. They will screw you and go to the edge of the law and beyond to do so.

    1. Absolutely correct. Cops are NOT your friends.

  13. What I would like to know: What happens if QI just goes away? Then what?

    1. Encourage them to pay attention.
      Personal malpractice insurance instead of the taxpayers eating it.
      If they’re bad enough, they won’t be able to afford it.

  14. what a pile of horse shit. Cops get QI 99.99999% of the time. who has EVER heard a case where they did not? please put a link here

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