Qualified Immunity

How Supreme Court Doctrine Protects Cops Who Kill (or Otherwise Use Excessive Force)

A Reuters report suggests changes in qualified immunity doctrine have immunized police officers sued for misconduct.

|The Volokh Conspiracy |

The doctrine of qualified immunity serves to shield government employees for liability for their actions. Basically, the doctrine holds that a government actor is immune from suit for discretionary actions performed within their official capacity, unless their actions violated "clearly established" law. So, for example, if a police officer is sued for using excessive force on a civilian, qualified immunity will protect them unless it was "clearly established" by prior court decisions (or relevant statutes) that their actions were unlawful or unconstitutional.

Qualified immunity is very difficult for victims of government misconduct to overcome. First, the Supreme Court has made clear that courts are to conduct a very narrow inquiry in determining what is "clearly established." Basically, if there's not a case on point in which government officials engaged in precisely the same misconduct, it's unlikely it will be considered "clearly established" that what the defendants in a subsequent case did is wrong.

Second, the way qualified immunity cases proceed today prevents courts from concluding that conduct was unlawful, so the unlawfulness of much wrongful conduct escapes ever being classified as "clearly established."

Historically, under Saucier v. Katz, courts conducted a two-part inquiry in qualified immunity cases. First, a court was to look at whether the alleged conduct would make out a violation of a constitutional right. Then, if so, the Court would consider whether that right was clearly established at the time of the defendant's alleged misconduct.  Under this approach, courts could conclude that what a government official did was wrong, and still find them immune. Importantly, however, such a ruling would put others on notice that those who engage in similar conduct would not receive qualified immunity.

In 2009 the Supreme Court overturned Saucier in Pearson v. Callahan. Under Pearson, a reviewing court can simply answer the second question: Was it "clearly established" at the time of the alleged conduct that the conduct was wrong? By truncating the inquiry in this way, Pearson made things easier for lower courts. Pearson also ensures that the wrongfulness of much wrongful conduct never becomes "clearly established."

A new investigative report by Reuters suggests that this change has had a significant effect on the rate at which courts find qualified immunity. Between 2005-07 and 2017-19, the percentage of qualified immunity cases won by plaintiffs dropped from 57 percent to 45 percent.

In the decade since [Pearson], the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished.

I am sure that the shift is due to a range of factors, and I hope that Reuters will make its data available to other researchers who would like to build on and refine their findings. It is important to understand how slight doctrinal shifts affect facts on the ground.

Beyond the doctrinal changes, the Supreme Court has also sent a clear signal to lower courts that it's more suspicious of rulings denying qualified immunity than those allowing suits to proceed.

 Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court's acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs' appeals, the acceptance rate was slightly below the court's average.

In the cases it accepts, the court nearly always decides in favor of police. The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal.

"You get the impression that the officers are always supposed to win and the plaintiffs are supposed to lose," University of Chicago law professor William Baude said. In his research, Baude has found that qualified immunity, as a doctrine, enjoys what he calls "privileged status" on the Supreme Court, which extends to cases the court decides without even hearing arguments – a relatively rare occurrence. In such cases, the court disproportionately reversed lower courts' denials of immunity.

Fortunately, current qualified immunity doctrine is subject to increasing criticism, including from academics across the political spectrum. Perhaps this will encourage the Court to change course.

Justices may think that a strict qualified immunity doctrine protects cops, but this would be mistaken. I would argue that by insulating bad cops from accountability for their actions, qualified immunity actually endangers the vast majority of cops who do not engage in egregious misconduct. Insulating officers from accountability reduces trust of officers across the board. Allowing suits to go forward against the small percentage of cops that truly do wrong would make it easier for more communities to have faith in the important work that police do.

NEXT: Today in Supreme Court History: May 11, 1942

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  1. It’s just amazing that a statute that was intended to provide broad relief to people whose rights have been violated has instead been transformed into a get out of jail free card for the police.

    1. The transformation is unlawful judicial activism.

  2. The most galling ones are police actions which are clearly illegal and not just overzealous — outright theft during a search for instance, where the corrupt cops simply pocket what they find instead of bag it as evidence; or shoot or beat up a handcuffed or locked-up prisoner; or plant evidence to frame somebody. The concept may have had noble beginnings, but it has clearly gone beyond all reason.

    1. No, the concept did not have noble beginnings.

      1. Yes, you are correct. Maybe I should have said “noble intentions” or some such wishy wishy phrasing, the kind the road to hell is paved with. I was trying to be polite, which is always a mistake with statists.

        1. Yes, one should be wary of being polite to those who want to shutter your business, muzzle you, and force you to wear mouth diapers.

          1. Just FYI, no one would need to think of forcing you to wear masks if you decided to act with regards to your fellow humans for once.

            1. Refusing to help protect your fellow humans from a deadly infection if it imposes even a de minimis inconvenience doesn’t seem to be acting with regards to them.

              1. Sorry, I thought this was a double post by Libertymike.

                1. You must enjoy being the King’s toady and his snitch. You probably lionize Pavlik Morozov.

                2. No worries. But I think we agree on the sentiment.

                  1. Yeah, wearing the mouth diapers saves lives…

                    1. Do you think all those who say masks help are in a conspiracy to…uh, make masks a thing for a while?

  3. So where are the deep pockets the lawyer is after? Do police unions provide an insurance? Do they have to sue the officer and only then can make the government pay up?

    I can’t see suing a 9-5 guy as very profitable. What is the larger context? The wiki page has nothing about this aspect.

    1. The deep pockets are there. Police are routinely indemnified by government with insurance. And successful civil rights litigants generally get their legal fees paid for.

      1. And usually yes, they usually have to sue the officer and only then will the government pay up. Municipal liability can’t be established based on a single incident. It requires proving a widespread “policy or practice.” This can be hard to prove. States have complete immunity under the 11th Amendment. So generally, the Individual officers will be sued even when the plaintiffs are also attempting to establish municipal liability.

    2. Joanna Schwartz did a nationwide study on police indemnification from civil rights lawsuits, and this is how she reported her findings: “During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments–even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct.”

      So even when the officers are sued in their individual capacity, it is a near certainty that the deep pocketed municipalities will be footing the bill.

  4. Some decades ago, there were a series of lower court decisions saying that some things are so obvious there doesn’t have to be a court case specifically on them.

    No more. It would seem that today’s climate permits enterprising police officers to carefully research the law to identify practices not specifically prohibited and which accordingly have immunity. A defense intended to address good-faith mistake or ignorance can instead end up protecting intentional bad faith.

    It should not require a specific on-point court decision to say that stealing under color of law is a deprivation of property without due process of law.

    1. That identifies yet an additional problem. Even if I believed generally in qualified immunity — which I do not — the courts have interpreted it as meaning that things that a reasonably bright high school civics student should know are unconstitutional get by because there’s no case directly on point — most likely because it was so obvious that nobody thought to litigate it.

      Do we really need the courts to tell us that fabricating evidence against the innocent, or stealing from people, or beating people who are handcuffed, is unconstitutional? Apparently so.

    2. It should not require a specific on-point court decision to say that stealing under color of law is a deprivation of property without due process of law.

      In the Ninth Circuit, there is in fact a “specific on-point court decision” that “stealing under due process of law” is not a violation of procedural due process if the state creates a system that allows a claimant to seek restitution for the wrongful taking (as California does). Barnett v. Centoni, 31 F.3d 813 (9th Cir. 1993). Accordingly, the plaintiffs in that case did not pursue a procedural due process argument, and relied on claiming a violation of the fourth amendment.

  5. IANAL. Educate me please.

    1) Where can I learn about the constitutional authority that QI rests on?
    2) What really underlies SCOTUS’ obstinacy on QI? It sounds like they just don’t want the courts to be bothered by such cases.
    3) National injunctions are big in the news this year. Can the decision of a single district court “clearly establish” behavior not allowed nationally? A single circuit court?
    4) What happened to the states in these cases? Presumably, a state court, not federal, would be the first stop for plaintiffs.

    1. 1. There is no constitutional authority for QI. The Supreme Court held that it existed at common law.

      2. There are many different theories on that; mine is that a relatively conservative Supreme Court doesn’t like having the federal courts used to sue state and local officials. It violates their idea of federalism.

      3. No. In practice, you pretty much need a Supreme Court decision stating that this specific fact patterns is unacceptable.

      4. It’s a federal statute, so most lawyers bring suit in federal court. However, even if a suit were brought in state court, because it’s a federal statute the state courts would be bound by the federal courts’ interpretation of it.

      1. On the last point: I don’t think that is exactly correct. The state courts are of course bound by SCOTUS decisions, but state trial courts are not bound by inferior federal courts writing on similar issues.

        1. Law Talking Guy is correct. Inferior state courts deciding questions of federal law are bound first by SCOTUS decisions, then by their respective state supreme court decisions, and then, if there are intermediate state appellate courts, by the decisions of those courts. Decisions by U.S. Courts of Appeals are as persuasive as the state court judge wishes to treat them, but they are not binding on state courts in a federal system. Defendants sued in state court under section 1983 who prefer to have their defense adjudicated under cases decided by the U.S. Court of Appeals may do so by timely removing the case from state court to the federal district court since federal question claims are removable without regard to the matter in controversy, and the federal judge to whom it is removed must follow the decisions of its court of appeals, again because in a federal system, only SCOTUS can bind all courts on questions of federal law.

        2. LawTalkingGuy makes an important point. Some states [particularly former colonies] expressly require their courts to turn not to the opinions of federal courts but instead to English common law.

      2. My fingers got ahead of my brain when I was typing my response; I intended to say that state courts are bound by the US Supreme Court but instead said that they are bound by “federal courts”. Thanks to others for clearing that up.

  6. “the vast majority of cops who do not engage in egregious misconduct”

    Objection: Assumes facts not in evidence.

    I would suggest that turning a blind eye to more direct misconduct is itself a form of misconduct on the part of police.

    1. The statement suffers from the logical fallacy that there is a small, equal percentage of bad apples in all occupational barrels.

      1. 1. The original saying is a few bad apples spoil the barrel.
        Rot/corruption is contagious, it will spread when not excised.

        2. I would argue that the police whose job it is to enforce the law have a special duty to clean their own house, even more so than any other occupation.

      2. Ah, but if I am blind to the actual number of bad apples in a barrel, is it _illogical_ to hypothesize that the number of bad apples therein is likely similar to that of those barrels I have examined?

  7. “percentage of qualified immunity cases won by plaintiffs dropped from 57 percent to 45 percent”

    Plaintiffs losing more often is not evidence that QI is being abuse or the courts are unfair to plaintiffs.

    It is impossible to objectively determine the “correct” percentage of winning cases.

    1. QI shouldn’t even exist, to the percentage of cases won by plaintiffs ought to be 100%

      1. Thank you for confirming your fundamental lack of seriousness on this issue.

      2. QI shouldn’t even exist

        It’s hard to argue against this from a sheer efficiency standpoint. If there’s no mechanism for early disposition of frivolous suits against law enforcement officers, in a short while there won’t be any time or budget left for law enforcement activities. Problem solved.

        1. “If there’s no mechanism for early disposition of frivolous suits against law enforcement officers…”

          QI dismisses a lot more than frivolous suites…

          1. QI dismisses a lot more than frivolous suites…

            No question, and hopefully there’s a way to better calibrate it. But if the only options are to have what we have today or nuke QI outright as Matthew wants to do, the latter doesn’t seem like a realistic choice.

        2. There is of course a mechanism for the disposition of frivolous suits against law enforcement officers: it’s called rule 11.

          QI is not about disposing of frivolous cases; it’s about disposing of meritorious cases because no court said that a police officer named John couldn’t shoot a shoplifter in the back on a Tuesday, and therefore the mere fact that police officers already know they’re not supposed to shoot any unarmed suspects in the back isn’t enough to hold John liable.

          1. There is of course a mechanism for the disposition of frivolous suits against law enforcement officers: it’s called rule 11.

            Ah, right. R11 is such a deterrent, it prevents frivolous lawsuits not only in this domain, but across the entire legal profession! Back in the real world….

            QI is not about disposing of frivolous cases; it’s about disposing of meritorious cases because no court said that a police officer named John couldn’t shoot a shoplifter in the back on a Tuesday, and therefore the mere fact that police officers already know they’re not supposed to shoot any unarmed suspects in the back isn’t enough to hold John liable.

            Those are certainly the ones we hear the most about, but as with most things in life I strongly suspect the cases that hit the news are far from the only ones filed. But even setting that aside, you also need to factor in the deterrent effect. Early-exit provisions like QI prevent a significant body of litigation that would otherwise be filed when the most likely downside is a nuisance-value settlement rather than outright dismissal.

      3. Even without QI, a certain number of cases would be losers on the merits, so I don’t know that I agree that the plaintiffs should win 100% of the time. Not even the police are in the wrong all the time.

        1. The issue at hand, isn’t who should win the case on the merits, but who should win the attempt to have the case dismissed on QI grounds.

  8. The doctrine of qualified immunity was first established by Harlow v. Fitzgerald, an 8-1 decision in 1982, with CJ Burger holding out for absolute immunity. (Thanks, Pop!) The two subsequent decisions mentioned in this piece were unanimous decisions, so we’re oppressed by liberals and conservatives alike.

    1. Yes and no. The doctrine of qualified immunity is itself a conservative doctrine — it promotes federalism by making it harder to sue state and local officials in federal court — even though some liberal justices signed off on it. And even though Justice Thomas has expressed a willingness to reconsider it.

      1. You know how when Lathrop makes the same ridiculous point in every thread, people begin to dismiss him as a crank?

        Hint, hint.

        1. What’s ridiculous about qualified immunity being a conservative doctrine since it promotes federalism?

          1. People can debate about what conservatism is a lot, but the party calling themselves conservative has introduced “Back the Blue” acts which would make it even harder to sue law enforcement. Also if you did a survey of politicians, commentators, and even judges who self- identify as conservative, you probably would not be surprised to find that they take the police or prison guard’s side in most disputes.

          2. What’s ridiculous is claiming that a doctrine adopted by liberal justices (and currently being called into question by some of the more conservative ones) is conservative.

            1. So whether a doctrine is liberal or conservative is determined by who espouses it and not by whether the doctrine itself rests on liberal or conservative principles?

              1. Who determines and assesses any determination of those “principles”

                It is not like Conservative or Liberal or Progressive are really well defined terms

  9. The police every day go out and face the worst our society has to offer. It is a tough and dangerous job, and we don’t want them spending time, in the heat of the moment, thinking if maybe someday a judge will find what they did violated a “civil right”. That is why we have a clear line rule: their is liability if they do something which a court has already ruled illegal, otherwise they get QI. It is essential that the police are out there justly enforcing the law for all, and if some police get away with violating the law then that is a small price.

    1. It is a tough and dangerous job,

      Being a cop doesn’t break into the top ten list of dangerous jobs. And you get to retire early, take a fat pension, and assume some cushy corporate security job somewhere.

      So no. It’s not tough. It’s not dangerous. But I guess a perk is that you can literally get away with murder.

    2. While it’s a job I sure wouldn’t want to do, we need to (at a minimum) allow courts to decide that something is illegal, even if the first cop to be sued for it gets a pass.

      Right now they don’t even decide if it’s illegal to set the standard, they just decide it wasn’t clearly established as illegal.

      1. Of course not.
        SCOTUS said in Pearson, et al. v. Callahan “..it may result in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the case’s outcome, and waste the parties’ resources by forcing them to assume the costs of litigating constitutional questions and endure delays attributable to resolving those questions when the suit otherwise could be disposed of more readily.”

        There is no reason to burden the parties in a case to argue and decide issues that will not affect the case at hand.

    3. Are you being sarcastic?

      “Some police get[ting] away with violating the law” is anything but “a small price”. Including the contempt that it breeds for law enforcement and the judicial system, it’s a very, very high price.

      I would be okay with the idea of qualified immunity if we peons were extended the same benefit of doubt when we are acting “in the heat of the moment”. We are not, however. Police and prosecutors are more than willing to arrest and charge for innovative interpretations of laws that even judicial scholars do not know are “against the law” until years of trials and appeals are done.

      1. Also: there are a lot of QI cases that have nothing to do with the “heat of the moment.” The Fifth Circuit prisoner in excrement case or the Fourth Circuit case about the police getting a warrant to produce child pornography didn’t involve split second decisions at all.

        Then even when the cops get to the “heat of the moment” moment, it often turns out that there were a bunch of much better decisions they could have made before putting themselves in that situation in the first place.

    4. “It is essential that the police are out there justly enforcing the law for all, and if some police get away with violating the law then that is a small price.”

      Your second clause sort of contradicts the first.

    5. “It is essential that the police are out there justly enforcing the law for all, and if some police get away with violating the law then that is a small price.”

      Cops unjustly enforcing the law is a small price to pay for cops justly enforcing the law? You wanna try that again?

    6. “That is why we have a clear line rule: their is liability if they do something which a court has already ruled illegal, otherwise they get QI”
      How about not requiring some random poor schlep of a fellow citizen bear the full cost and brunt of police bad acts. Would your comment be the same after, say, cops mistook tea for weed in your trash can, faked a field test, failed to perform a confirmatory test, then held you and your family at gunpoint while ransacking your home.
      Whoops, they say. And tough shit for you.
      Or maybe we should democratize the burden for having been damaged. While QI might protect the individual cop, perhaps your case could be judged by the simple rule that your rights had been violated, and you are due compensation. It will not directly punish the wrongdoing cop or department, but will have the effect of not having the cost solely born by one unlucky individual, and once the costs start adding up, the taxpayers paying for the police department insurance policy will take notice and make some changes. Or the taxpayers might not; such is their right to pay more taxes.

    7. This is bullshit from top to bottom.

      1) The police do not do a tough and dangerous job.

      2) The police in the heat of the moment do not sit around thinking about whether a case is merely persuasive authority or binding authority and whether it’s a close enough fact pattern to the current situation to control their behavior. QI is neither necessary nor sufficient to alter their behavior in such situations.

      3) QI does not only apply in the proverbial “split second decision” (or “heat of the moment”) situations; it applies regardless of how many seconds, minutes, hours, days, weeks, or months a state actor had to consider his conduct before proceeding.

      4) Surgeons have to make split second decisions in the heat of the moment, but we do not therefore grant them immunity from malpractice claims.

      1. Just to quibble:

        “1) The police do not do a tough and dangerous job.”

        Some do. I think the statistics, relative to coal miners or whatever, are a little distorted because many police are indeed doing pretty low risk jobs (i.e. instructors at the academy, administrators, detectives handling white collar crime, etc). But the guys working patrol in high-activity areas are, I think, doing a tough and dangerous job. I worked for decades as a computer nerd and the number of times someone punched me, pulled a knife, etc, etc, etc was zero. That’s not at the case for *some* officers, who those things happen to routinely.

        “4) Surgeons have to make split second decisions in the heat of the moment, but we do not therefore grant them immunity from malpractice claims.”

        Surgeons get paid enough to afford very large malpractice premiums. I just did an depth study ^H^H^H^H^H^H^H eleven seconds of googling and it said general surgery annual malpractice premiums range from $41K in LA (why is LA so low?) to $190K in Miami. It may be that paying police an extra $100K in salary and making them buy their own insurance is better than QI, or not, but that would be a big change.

        (FWIW, my sense is that it’s not that QI is bad for something novel – I don’t think, for example, that Miranda should have been able to sue the officers who arrested him for not reading him his rights . I think my, and maybe many people’s outrage over QI is that it is successfully invoked for conduct which even a Labrador retriever ought to know is wildly unacceptable)

        1. That’s not at the case for *some* officers, who those things happen to routinely.

          If there is an officer who routinely is assaulted, I would suspect it’s because he’s bad at being an officer, someone who likes to throw his authority around rather than trying to deescalate situations.

          Surgeons get paid enough to afford very large malpractice premiums.

          I don’t quite understand your point here; police don’t have to pay their own ‘malpractice premiums’ (so to speak) at all, so they’re treated better than surgeons in that way also. (That is, if you eliminated QI, police wouldn’t be any more personally exposed than they are now.)

          I think my, and maybe many people’s outrage over QI is that it is successfully invoked for conduct which even a Labrador retriever ought to know is wildly unacceptable)

          TBF, a Labrador retriever is likely smarter than some cops. But, yeah, that’s a big part of the problem. (While I philosophically don’t like QI, I could probably live with it if the courts simply eliminated the doctrine that one can’t define constitutional rights at a high level of generality. “Don’t use excessive force” seems to me to be perfectly legitimate to get to a jury.)

  10. US Constitution, Article I, Section 9 Clause 8: No Title of Nobility shall be granted by the United States…

    Speaking as a mathematician, I see that a big component of such titles was immunity to (most of) the law. By pushing this doctrine, the courts are doing a prima facie violation of the Constitution itself. FWIW.

    1. Can you provide some support for your claim that in 18th century England, a “big component” of a title of nobility was “immunity to (most of) the law”?

      1. If the founders and the ratifiers had intended to immunize the king’s men from the consequences of their actions, they would have so said in the constitution. It ain’t there.

        If a cop interferes with another’s liberty, let the cop face ruinous damages. No special pleading for the fellas who were second string in high school and who could not get the pretty girls and who are second or third or fourth generation public sector hacks.

        1. That really doesn’t have anything to do with titles of nobility, but I also don’t think I follow your point.

          No one thinks the doctrine of qualified immunity is constitutionally required. Rather, it’s a defense to a claim that arises under a statute passed by Congress. (A statute, incidentally, that probably would have itself been unconstitutional before the ratification of the 14th amendment.) Congress could, at its pleasure, expand the doctrine, or narrow it, or abolish it altogether. Or Congress could repeal the statute entirely.

          1. The constitution itself does not specify that the term Title of Nobility is to be narrowly construed.

            If, as a whole, the document was intended to chain state actors, i.e., the King’s men, it would be wholly illogical to be niggardly in one’s interpretation and application of the the term.

            The framers and the ratifiers had an opportunity to narrow the scope of the term’s meaning within the 4 corners of the constitution. Given that they did not, the best interpretation is that the King’s men are within its ambit.

            1. Congress has given a lot of people immunity over the centuries. A corporation immunizes the stockholders from personal liability. Web sites are immunized from liability for content posted on them. Indeed, every constitutional or statutory right, every law that changes or abolishes part of the common law, could be construed as a limitation of or immunization from liability. The First Amendment immunizes from liability for speech, the Civil Rights Act for trespassing. And so on.

              Is it your position that all of these laws are illegal under the Title of Nobility Clause? There are a lot of them.

              1. There were a couple of points I made in the preceding posts.

                First, qualified immunity is not authorized by the text of the constitution, the experiences of the founding generation, and the principles underpinning the Declaration of Independence, one of which is, of course, natural rights.

                Second, neither the text of the constitution nor that of the Declaration of Independence empower courts to immunize state actors from liability for the actions they take as the King’s men. Concocting qualified immunity in order to sanitize the barbaric conduct of a fellow public sector hack is the very quintessence of judicial activism.

                Third, in a society that values natural rights, i.e., an ownership society that fosters and protects individual accountability, creativity, entrepreneurship, freedom of association, free enterprise, free expression, innovation, ridicule of those who would feed at the public trough, savings, and thrift, is a society that punishes those who, acting under the color of law, abridge, interfere, or violate the liberties of another. Such a society has no patience for pleas of special pleading for the King’s “heroes.”

                Fourth, the Title of Nobility clause should be construed broadly for the reasons I set forth above. There is no grant of power given to the courts to restrict the sweep of the Clause’s applicability.

  11. ” . . .it’s more suspicious of rulings denying qualified immunity than those allowing suits to proceed”

    Aren’t these the same lawsuits? Denying qualified immunity allows them to proceed.

    1. I had to reread that sentence several times, and came to the same conclusion. I’m surprised it hasn’t been corrected. Most bloggers here read the comments section. Adler, not so much I guess.

  12. Where judges get the idea that they need to live by different rules than the rest of us? Sure, the legal system is inefficient, but most of us manage to get out of bed and do our jobs, even knowing that we can get sued if we do bad things.

    The idea that cops, prosecutors, and judges couldn’t function under the same rules the rest of us live by, and that we should just trust them not to do bad things, shouldn’t pass the laugh test.

    The NOLA DA’s office sent out fraudulent subpoenas on a regular basis for 20 years, and he’s trying to claim that he is immune. If he’s found to be immune, what would prevent him from resuming the practice.

    1. Justice Douglas’ dissent in Pierson v. Ray, 386 U.S. 547, 559-567, is a pretty good rebuttal to the contention that the common law trumps the plain meaning of the civil rights statute of 1871.

    2. If more informants had memorized the addresses of judge’s houses, to be recited to gullible cops, then this entire thing would be rapidly self correcting.

  13. A Reuters report suggests changes in qualified immunity doctrine have immunized police officers sued for misconduct.

    Isn’t that the whole point?

  14. I think everyone is wrong here, even, respectfully, Prof. Adler. Qualified immunity is a doctrine that is a kludge on a kludge. It restricts the use of civil rights legislation as a kind of alternate tort claim. But the underlying statute, 42 U.S.C. Sec. 1983, is a civil rights law that was intended to prevent discrimination such as preventing African Americans from voting. It was not intended as a way to sue for assault. The reason that it is used that way is because all of the states have enacted tort claims acts that prevent plaintiffs from suing government officials for intentional torts. Judges did not like that, since it allowed bad actors to get away, literally in many cases, with murder. So they invented the use of the civil rights statute to sue police for the kind of intentional torts that we use regular tort law to sue regular people for, by pretending that hitting or shooting someone is just like forcing them into a segregated school.
    But of course, that opened the door too widely, and the judges then narrowed this pathway to tort liability by inventing “qualified immunity.”
    The real solution is to junk the use of Sec. 1983 as an alternative tort law, and instead deal with the root of the problem: the tort claims acts. If the states allowed the suits for intentional torts against police under specified conditions, this entire ridiculous judicial dance could be ended. Rather than file amicus briefs and lobby the courts, better to lobby your state legislature.

    1. While there is some validity to what you are saying, outright murder is in fact within the scope of a civil rights violation, since there is ample history of state actors either doing the murdering, or openly allowing private citizens to do it. Since the 14th Amendment explicitly exists to allow federal remedies for said actions, it makes sense that a civil rights law would allow suits for such things.

    2. But the underlying statute, 42 U.S.C. Sec. 1983, is a civil rights law that was intended to prevent discrimination such as preventing African Americans from voting. It was not intended as a way to sue for assault.

      I don’t want to go all Jack Balkin, but I think you’re confusing original understanding for original expected application. And frankly, given how broadly they wrote the statute, I don’t even think that your OEA argument flies.

      1. David, do you really think any of the members who voted for this statute intended for it to be a substitute for common law liability for battery, conversion and similar torts with no discrimination aspect involved?

        1. That’s the OEA argument.

          But, you know, those people knew how to write an anti-discrimination statute. See § 1981, for instance. So why is it so hard to accept that a much more broadly worded § 1983 was intended to apply much more broadly?

  15. And Valkanis – I completely agree that if state actors committed murder for reasons relating to racial prejudice or similar discriminatory purpose, that would be well within the purpose of this statute as enacted. But if, e.g., the state actor murders someone to eliminate a witness to a theft, I do not think that is within its purpose.

  16. Adler’s comment that removing or changing the doctrine of Qualified Immunity would assist good cops is total nonsense. Having served as in house legal counsel for a law enforcement organization I’ve seen the vast majority of lawsuit tossed on QI that should never have been filed. Police are constantly getting sued because people don’t like having their homes and businesses searched, and don’t like getting arrested, and certainly don’t like it when police use force against them. No LEO I know or have known would prefer to see the doctrine disappear. The reason the SCOTUS, even the liberal judges, consistently reverse lower courts who don’t find QI when it clearly applies, is because these courts fail to apply the standard properly. The doctrine that should irk readers of this blog is the doctrine of Absolute Immunity enjoyed by judges and prosecutors, who don’t face split second life and death decisions yet can make the most egregious errors and unjustified actions, yet need not face the recourse of facing lawsuits filed against them by aggrieved parties.

  17. I find myself taking an intermediate position. I think the policy underlying the doctrine is sound, as subjecting police officers to suit everytime someone is angered at what they do would make them spend all their time in court as defendants, and the frivolous lawsuit doctrine is insufficient.

    However, I think the doctrine should be limited to genuine mistakes, to close calls and fine points. People should be required to have some common sense and obviously illegal things should not get qualified immunity just because there was no case specifically on point.

    So the doctrine has a useful purpose, but has become overextended. It should be kept, but rolled back somewhat.

    1. Similarly, the doctrine should protect genuine mistakes, but not gross incompetence.

      1. In other words, you prefer errors where police violate constitutional rights to errors where they refrain from doing so.

        As for myself, I think the exact opposite. Law enforcement should strive to comply with the Constitution, not feel relieved that they will face no liability when they cross the line.

  18. Were it up to me, I’d treat constitutional violations much like a typical tort. If it’s shown by a preponderance of the evidence that the government actor infringed on someone’s constitutional rights, the victim is entitled to the usual civil remedies. And, just like in cases where individuals act on behalf of larger entities, the agent and the principal would typically be liable.

    Sure, that might expose some individual actors to significant liability. But that’s hardly an insurmountable obstacle. Insurance and indemnity could be made available — and certainly would be.

    So the government would end up bearing the costs of its constitutional violations, and victims would be made whole (as best the law can), just as it should be.

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